My name is Miriam Airington-Fisher. I am a civil rights, criminal defense, immigration attorney with over 15 years of experience. My team and I receive many questions regarding the status and security of one's permanent residency or 'green card' status while navigating divorce. Some cases are a matter of two people mutually falling out of a marriage, while many others sit at the intersection of abuse. No matter the case, you will need the help of an experience immigration professional to help you achieve the status and peace of mind you deserve.
Will I lose my green card if I divorce my spouse?
This is a common concern among people who obtained their immigration status through marriage to a citizen or resident. When you get married to a citizen, you are typically eligible for your residency. If you have been married for more than 2 years. by the time you file for residency, if approved you will receive permanent residency.
If you have been married for less than 2 years when you file for residency, that residency is "conditional" and in 2 years, you will need to file to "remove the conditions" and obtain true permanent residency. The purpose of this requirement is to confirm that the marriage was entered into for good faith and not just for immigration benefits. When you file to remove the conditions on your residency, you will need to show one of three things:
1) You are still married and living together.
2) You married in good faith, but divorced.
3) you married in good faith, but were subjected to domestic abuse.
Regardless of which circumstance applies, it is extremely important to file for the removal of conditions (Form I-751) and subject supporting documentation. In any scenario, if you fail to file that application, you will lose your residency and can be referred to deportation proceedings. Once you have your full permanent residency, there is no requirement to remain married and you will not lose your green card if you divorce. However, at any stage of the immigration proceedings - including naturalization - it is important to have documentation that the marriage was entered into in good faith. This can include photographs, letters from friends/family, proof of joint residence and finances, and other records showing that you shared your life together during your marriage. We regularly handle immigration cases with separated or divorcing clients, or clients who have suffered domestic abuse. These cases require special care.
How can an immigration lawyer help with situations of domestic abuse?
There are several immigration options available specifically to victims of domestic abuse. Domestic abuse includes not only physical and sexual violence, but emotional abuse, financial control, and cruelty. It is important to note that in each of these case types, independent "evidence" is not necessarily required - the applicant's statements about what occurred can be sufficient to support a case.
Asylum: If an applicant was the victim of domestic violence in their home country, and had to flee their country because there were inadequate protections for victims of domestic abuse, they may qualify for asylum. Unfortunately, many countries around the world do not offer strong legal protections for victims of domestic abuse. In some situations, the applicant may qualify for asylum in the US based on domestic abuse in their home country.
VAWA Self-Petition: Generally, when an immigrant marries a citizen or resident, the US citizen spouse will file a residency application for their immigrant spouse. In abusive marriages, sometimes the US spouse will not file the applicant, in order to keep the immigrant spouse "stuck" or dependent on them. Alternately, the immigrant spouse may be afraid to leave the abusive marriage for fear of losing their residency. Either way, an immigrant spouse who is in an abusive marriage is eligible to file a "self-petition." This means the immigrant spouse can file their own applicant for residency, without the abusive spouse even knowing about it. This is a specialized process and we handle these cases all of the time. The immigrant spouse is eligible to file at any point during the marriage, whether or not they are still living with the abusive spouse. If they divorce, the immigrant spouse is eligible to file for up to two years following the end of the marriage. If the applicant is granted, the immigrant spouse has the full benefit of residency and work authorization without any connection to or reliance on the abusive spouse.
U-Visa: A U-visa is a visa available to victims of certain crimes, including crimes related to domestic abuse. The requirements are that the crime occurred in the US, and the applicant reported the crime to police and reasonably cooperated with the police, unless extenuating circumstances apply. While a police report is required, we regularly assist clients in reporting crimes even years after they have occurred, where the applicant was too afraid to call the police at the time of the crime. Once the police report is made and a certification signed by the law enforcement agency, the applicant must show that they suffered harm from the crime. U-visa applicants are also eligible for a waiver of past immigration or criminal violations, making this an excellent option for applicants who entered the country without documentation. Applicants can include certain family members as beneficiaries, even if those beneficiaries are outside the US, and the parents of a minor child who was the victim of a crime can also apply for the visa.
T-Visa: A T-visa is available to victims of human trafficking. While human trafficking takes various forms, including labor and sex trafficking, domestic servitude and abuse are also forms of trafficking. Sadly, some applicants are brought to the US by a partner under the pretext of building a new life here, only to be subjected to domestic abuse and forced domestic labor. The requirements for a T-visa are that the applicant suffered human trafficking, is present in the US on account of that trafficking, is willing to cooperate with an investigation, and would suffer extreme hardship if deported. Like U-visa applicants, T-visa applicants are also eligible for a waiver of past immigration or criminal violations, making this an excellent option for applicants who entered the country without documentation. Applicants can include certain family members as beneficiaries, even if those beneficiaries are outside the US.
Even with awareness and education, there are still so many variables-deadlines, USCIS misfires, and other barriers. The best way to ensure you own safety is to hire an experienced immigration professional to help you navigate this challenging time. Good luck, never file alone.