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How To Divorce An Immigrant Spouse

Can A Divorce Affect My Permanent Residence Status In Canada

Marriage & divorce: an immigration nightmare
Immigration Solicitor

If your spouse has managed to gain a permanent residence in Canada, they’ll be able to sponsor you to come and live with them. This law enables Canada to get the best immigrants they can, as people won’t be discouraged by having to leave their families.

But the problem arises when a divorce happens. Or do they?

Can I lose my permanent residency if I get divorced?

Will a Divorce Affect My Immigration Status?

If you’re an immigrant, your marriage and divorce might not have been certified by Canadian courts, so you might be wondering “Will my foreign divorce be recognised in Canada?”.

Yes, it will. If you get divorced, Canada will legally recognise it.

But is this going to affect your immigration status?

Firstly, it depends on what your current immigration status is. Just because you were the spouse of a permanent resident, doesn’t automatically mean you’re in the country as a sponsor. Some couples may have two separate immigration statuses this could be due to both spouses being eligible.

If this is you, nothing will change, as your immigration status is not connected to your marriage.

However, if you came over as a sponsored spouse or partner, you may have to leave. Deportation will only be the case if you are unable to apply for permanent residency. Highly unlikely if you have been living in Canada for a while, and have paid your taxes and obeyed the law.

How Divorce Affects Immigration

The USCIS takes marriage visas very seriously, but its important to understand that the agency will not treat legitimate divorces unfairly. The agency investigates divorce claims if there are indicators that the marriage was fraudulent to begin with.

For example, if a couple files for divorce days after receiving green card approval, the USCIS may investigate the issue and proceed accordingly. In most cases, divorce does not necessarily impact immigration status. If a couple files for divorce before their joint filing is processed, the immigrant spouse may file a petition to apply separately. However, if filing for divorce during any part of the approval process can impact the case even if it does not cause the loss of status. In some cases, a separated spouse can stay but they may need to file further documentation with the USCIS.

How Soon Can A Green Card Holder Remarry

A conditional permanent resident citizen who obtained a green card through marriage support and got separated can remarry anytime they want. However, if they want to file a green card petition for their immigrant spouse, their green card must be at least five years old.

If they dont wait the required five years before remarrying a foreigner, they should expect an RFE or NOID. Only couples whose marriage ended with a spouses death dont have to wait five years before remarrying or filing a petition.

The United States Immigration Services will issue a Notice of Intent to Deny or Request for Further Evidence to prove the prior marriage was bona fide through photographs or text messages.

Then, theyll need to submit clear and convincing evidence that their marriage relationship with their ex-spouse was real for the Immigration Services to review.

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Don’t Try Challenging Form I

When Form I-864 was first created, lawyers had some questions about whether U.S. courts would, in fact, confirm that it is legally enforceable as between the immigrant and the sponsor.

It was quite clear that U.S. government agencies could sue for reimbursement of any benefits the immigrant claimed, but the fact that the agreement wasn’t directly made between and signed by both the sponsor and the immigrant raised some questions.

Enough time has since passed, however, for U.S. courts to have stated quite clearly that a legal obligation exists between the U.S. sponsor and the sponsored immigrant.

What You Need To Know About Divorcing An Immigrant Spouse

Divorcing an Undocumented Immigrant in New Jersey

The divorce process becomes more difficult when your spouse is an immigrant. Heres what you need to know about divorcing an immigrant spouse.

Divorcing an immigrant spouse sponsored through marriage can negatively impact their status. An immigrant spouse who holds a conditional green card might be deported unless both spouses file a petition for a permanent green card. Divorce settlements, such as child support, are internationally recognized and enforced through international agreements.

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What Happens If You Divorce An Immigrant

There has been a recent increase in divorce rates among Americans, with the average person divorcing around twice during their lifetime.

Divorce rates have been on the rise for a number of reasons, but one contributing factor is that more and people are getting married later in life and therefore have a greater chance of having gone through a divorce before tying the knot.

However, marriage between immigrants and citizens is a relatively new phenomenon in the United States, so the number of people getting divorced after an immigration status change could be minimal or it could be growing.

According to the Pew Research Center, there are approximately 11 million undocumented immigrants living in the United States. These individuals have often been separated from their spouses who remained in their native countries as they entered the U.S. illegally in search of a better life.

If these people go through the difficult process of obtaining a green card, it is likely that they will eventually marry an American citizen and have children born in the U.S.

However, this also means that the couple are now faced with the possibility of being deported if they try to divorce and go back to their native country.

Despite this obstacle, it is not uncommon for immigrant couples to divorce even though they run the risk of being deported. In fact, studies have shown that immigration has only a small effect on overall divorce rates in the U.S.

Abusive Us Citizens Death

Abusive U.S. Citizen Dies Prior to the Filing of the Self-Petition

Self-petitioning spouses or parents whose abusive U.S. citizen relative died before they filed a self-petition continue to remain eligible to file a self-petition for 2 years after the death. The requirement that a self-petitioner file within 2 years following the death of the U.S. citizen relative is a condition of eligibility for which there is no waiver or equitable tolling available. The 2-year period cannot be equitably tolled because the statute allows for self-petitioning while the qualifying relative is living and creates a cut-off date for filing when the relative has died.

Note that for abused parents to be eligible to self-petition, the U.S. citizen son or daughter must have been at least 21 years old when the son or daughter died. If a self-petitioning childs U.S. citizen parent dies before the child files a self-petition, however, the child is ineligible for VAWA benefits.

Abusive U.S. Citizen Relative Dies While the Self-Petition is Pending or Approved

If a self-petitioning spouse, child, or parent had a pending or approved self-petition at the time of the U.S. citizens death, the death does not impact their eligibility for the pending self-petition or require revocation of an approved self-petition. The self-petitioner remains eligible to apply for an immigrant visa or adjustment of status after the self-petition is approved.

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How Does Divorce Affect My Progress Toward Us Citizenship

When marriage between a U.S. citizen and a non-citizen spouse ends, the latter may experience a delay or halt in their progress towards becoming permanent residents. This is because divorce can affect the following:

It’s advisable to seek professional guidance from an immigration attorney who understands US citizenship and immigration services. They will help you navigate the quagmire quicker.

How Long Do You Have To Be Married To An Immigrant Before Divorce

How to get a “Spousal Visa” in California

If youre married to a u.s. citizen, you only have to wait three years after becoming a green card holder to apply for naturalization and divorce. If you divorce before applying for citizenship, you have to wait for five years. Married to an American Citizen Youll need to have been married for at least one year to be eligible for green cards.

This means that you must have lived with your spouse in the United States for a minimum of two years before the marriage. You must also have a child under the age of 18 living with you at the time of your marriage, as well as a spouse who is a citizen or national of another country.

In addition, youll also need a parent or grandparent who has been a permanent resident of the country for more than 10 years, or a person who was a naturalized citizen at any time during that time.

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Can I Cancel My Spouse Green Card

You can easily cancel the green card of a spouse before it is approved by reversing the I-130 with a signed, notarized letter. USCIS office is located at the following address: Immigration and Naturalization Service, Office of the Chief Counsel, Immigration and Nationality Division, Washington, D.C. 20250-0001.

Divorce As A Lawful Permanent Resident

If you have been married long enough to gain lawful permanent residence , legal separation and divorce will most likely not affect your permanent residency. Being that you have already proven that your marriage was a bona fide legitimate marriage and therefore your permanent resident status is valid.

For any green card renewals that may take place, you will need to file Form I-90 . There is a joint filing requirement for this application so you will not need your ex-spouses help to sign the petition nor will you have to file any waivers. Any visa renewals can be done by yourself indefinitely or until you achieve U.S. citizenship.

Furthermore, if you wish to change your name back to your maiden name, you may do so at the time of renewal or replacement. To do this you will need a legal document as proof, such as a final divorce decree. Just be sure to indicate the name change on Form I-90 along with submitting a copy of the legal name change document.

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Legality Of Foreign Divorces

Previously married applicants must be legally divorced or their marriage must be legally annulled before they may remarry. In addition to proving that their subsequent marriage is legal, they must first prove that their divorce was legal. If the legality of a marriage or divorce is in doubt, consult the visa office responsible for the country where it took place, providing all available documents and information and an explanation of the concerns.

Officers may need to look closely at foreign divorces to determine if sponsors or applicants were, or are, legally free to marry again. The fact that a marriage licence was issued, or that a couple has remarried, is not proof that a divorce was legal where it occurred, or that it would be recognized as legally valid in Canada.

A foreign divorce is without effect if it was obtained by fraud or by denial of natural justice.

The federal Divorce Act of 1985 governs the recognition of foreign divorces. It specifically provides for the recognition of foreign divorces where the divorce was granted after February 13, 1986. These divorces are valid in Canada if either spouse was ordinarily resident in the foreign jurisdiction for one year immediately preceding the application for the divorce.

The Divorce Act also preserves common-law rules respecting recognition of foreign divorces. For example, Canadian courts may recognize foreign divorces when:

Does Uscis Check Your Text Messages

Green Card Marriage Divorce

It doesnt. The best strategy is simply to assume that anything you post online will be seen and examined by immigration authorities. Some immigration attorneys may even recommend that you refrain from social media use entirely while your visa or green card application is pending.

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Abusive Lawful Permanent Residents Death

If the LPR relative dies before an abused spouse or child files a self-petition, the self-petitioning spouse or child is ineligible for VAWA benefits. If the abusive LPR relative dies while a self-petition is pending or was previously approved, USCIS may approve the self-petition or continue adjudication for an adjustment of status application based on an approved self-petition in certain circumstances under INA 204 as a matter of discretion. In order to remain eligible for the self-petition under INA 204, self-petitioners must demonstrate:

  • They resided in the United States when the LPR relative died and

  • They continue to reside in the United States on the date the pending self-petition or adjustment of status application is approved.

When there are derivative children beneficiaries, if the self-petitioner or any one derivative beneficiary meets the residence requirement, then, as a matter of discretion, USCIS may approve the self-petition or application for adjustment of status. The self-petitioner and all beneficiaries may be eligible to immigrate to the same extent that would have been permitted if the LPR relative had not died. It is not necessary for the self-petitioner and each derivative child to meet the residence requirements.

What If I File For Divorce After Getting My Permanent Resident Card

If you’ve gained permanent residence through marriage, the impact of divorce can be significant. Divorce after getting permanent residency may force the non-resident spouse to leave the U.S. The reason is that the residency is based on marriage, and the marriage isn’t valid anymore.

The good news is that you can prevent this outcome in certain circumstances and ways. For example:

But it’s crucial to consult an immigration attorney to find the best route.

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Divorce And Remarriage Immigration: The Guide You Must Need

There are laws guiding lawful permanent residents applying to adjust status or sponsor a new spouse. If the marriage through which you obtained permanent residence has ended and you want to marry another. The green card holder spouse needs to wait at least five years before petitioning after they got their green card.

If you or a family member is going through any kind of immigration process, we recommend working with an experienced immigration attorney. With the guidance of a good immigration lawyer, there are fewer chances that youll make mistakes in the green card application.

This article will be answering frequently asked questions about a visa petition for a green card for your second marriage which must be a bona fide one as an LPR divorcee.

How To Notify Uscis Of A Pending Divorce Case

How Nigerian Women Abroad Treat Their Husbands Anyhow After Earning ‘Small Change’ – Dr. Nkechi

Divorce is hard for anyone. The constant triggers and the dismantling of everything youve spent years building. Divorce is even more challenging when youre an immigrant working on becoming a lawful permanent resident in the United States.

If youre an immigrant trying to get a permanent green card and youre going through a divorce, youll need to notify United States Citizenship and Immigration Services . An experienced divorce attorney can help make sure you follow the process to become a U.S. citizen properly.

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E Loss Or Renunciation Of Us Citizenship Or Loss Of Lawful Permanent Resident Status

A self-petitioner must demonstrate a qualifying relationship to a U.S. citizen or LPR at the time of filing to be eligible for a self-petition. Therefore, historically, if abusive U.S. citizen or LPR relatives had lost or renounced their U.S. citizenship or LPR status, self-petitioners were no longer eligible for the self-petition.

Congress recognized, however, that an abusers loss of U.S. citizenship or LPR status may have been related to an incident of domestic violence, and that the loss would impact a self-petitioners eligibility for VAWA benefits. So when Congress passed the Battered Immigrant Women Protection Act in 2000, it amended the immigration laws to preserve self-petitioning eligibility in certain cases where abusers lost their U.S. citizenship or LPR status for a reason related to an incident of domestic violence, as long as the self-petition is filed within 2 years of the loss or renunciation.

BIWPA also provided that if abusive U.S. citizens or LPRs lost their status after the self-petition was filed, then self-petitioners would retain their eligibility despite the loss of status without having to show a connection between the loss of U.S. citizenship or LPR status and an incident of domestic violence.

Self-petitioners must notify USCIS if their qualifying relative lost or renounced U.S. citizenship or LPR status. Officers may check USCIS electronic systems to confirm the loss or renunciation of citizenship or LPR status.

Alternatives For Us Citizens

In some cases, a divorced U.S. sponsor may argue that the foreign national beneficiary has a duty to mitigate their damages, a principle adapted from contract law. However, courts have generally concluded that a foreign national does not have a duty to mitigate damages by making good-faith efforts to find a job that can support them.

Sometimes a foreign national will start living with a new romantic interest or another friend or family member after getting a divorce from the U.S. sponsor. The U.S. sponsor may argue that forcing them to continue paying support to the foreign national is unfair, but courts have not accepted this argument. For example, a federal appeals court ruled in 2016 that a real estate agent needed to continue supporting his ex-wife, even though her adult son could support her adequately to prevent her from seeking government benefits. The court found that the I-864 required the real estate agent to support the wife because she had no income of her own. It felt that the rule of determining support based solely on the foreign nationals income level was fair to the U.S. citizen because it did not require them to support any dependents of the foreign national.

The best solution for a U.S. citizen divorcing a foreign national may be to negotiate a waiver of their I-864 support obligation during the divorce.

Last reviewed October 2022

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