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Non-Citizen and U.S. Citizen Divorce Considerations

Every year, thousands of American citizens and non-citizens wed. For many non-citizens, it is an opportunity to not only marry their significant other but also to obtain legal permanent residence (citizenship) in the United States. The process to obtain legal permanent residence takes years and often requires the filing of many documents and forms. During this lengthy process, the couple must prove to the U.S. Citizenship and Immigration Services (USCIS) that the marriage is valid. Should the couple decide to divorce during this process, it can create a complex and daunting situation for both parties.


What is the process to obtain legal permanent residence through marriage?

Following the couple’s union, the U.S. citizen can petition for the non-citizen to obtain a 2-year provisional green card by filing Form I-130, Petition for Alien Relative, with the USCIS. Following the 2-year period, the conditional green card holder will need to file a Form I-751, Petition to Remove Conditions on Residence, with the USCIS in order to remove the conditions and become a lawful permanent resident (LPR) with a 10-year green card.


What happens if the U.S. citizen and non-citizen divorce within the first two years of marriage?

If the couple divorces before the second anniversary of obtaining a conditional permanent residence status, the non-citizen spouse may be considered deportable. However, there are exceptions to this general rule and the non-citizen may be able to petition for a waiver that would allow them to remain in the U.S. The non-citizen spouse must prove one of the following:

  • Good Faith – The marriage was entered into in good faith, meaning that the marriage was not entered into to obtain a green card, and the union was terminated due to no fault of the non-citizen. If the couple lived together, had a child or children together, or owned property together, it is likely that the court will find the marriage was entered into good faith.
  • Extreme Hardship – The non-citizen spouse would face extreme hardship if deported to their native country.
  • Domestic Violence – The non-citizen was abused, battered, or treated with extreme cruelty by their U.S. citizen spouse.


What happens if the U.S. citizen and non-citizen divorce after two years of marriage?

In most instances, when a non-citizen and U.S. citizen divorce after two years, the foreign spouse will not likely face deportation as long as he or she has obtained LPR status and has not been accused of a crime that would make him or her a priority for deportation. Those with LPR status that have been convicted of crimes, even low-level misdemeanors, may be prioritized for detainment and deportation.

A divorce may delay the non-citizen in obtaining his or her citizenship. For those that are married to a U.S. citizen, there is a three-year residency requirement to take a citizenship exam. For those that are not married to a U.S. citizen, there is a five-year residency requirement.


Does a Divorce Between a Non-Citizen and U.S. Citizen Affect Child Custody?

No, child custody cannot be determined by a spouse’s citizenship status alone. A family court will award child custody based on what is in the best interest of the child. An experienced family attorney may be essential in obtaining a fair child custody agreement. For non-citizen parents who fear that they will become deportable following a divorce from their spouse, it important that they seek prompt legal assistance from an experienced immigration attorney.

Filing for divorce during the process to obtain legal permanent residence can be complex and can raise real and serious concerns for both parties. It is important that those who are considering filing for divorce seek the guidance of an experienced attorney who can protect their legal rights and advocate for their interests during proceedings. For guidance on an immigration-related matter, contact the experienced New York immigration lawyers at Bretz & Coven, LLP. With two immigration law offices located in New York, New York, and Clark, New Jersey, the firm’s attorneys are available to provide residents in the tri-state area the legal representation they need. For more information or to schedule a consultation, call our New York City immigration lawyers at (212) 267-2555 or fill out our contact form.

Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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"Was trying to get Green Card since about 7 years. Finally when I switched to this law firm I was able to get green card very fast with great confidence. Big thanks to Eileen, Kerry, Manjit and Olga." - Dinesh, Kansas

""With an extensive criminal history: over 14 arrests, 2 State prison bids and several felony convictions no lawyer wanted my case in 2010. Thanks to the experts at Bretz & Coven who worked diligently and with precision, today I am a United States citizen." - E.A. Brooklyn, NY

"Absolutely one the best, if not the best immigration attorneys. They helped from start to finish in my green card process. At no point was I blind-sided by anything. Simply amazing!" - Leon B. Jersey City,

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