Divorce and Immigration

When you bring your fiancé into the US on a fiancé visa, you are your spouse’s sponsor. As sponsor, you are financially responsible for any person that you have sponsored. When a divorce is commenced within two years of your spouse’s entry into the US, you should think about withdrawing your sponsorship to end that financial obligation and that of any dependents you have sponsored. Unless your spouse leaves the country, this financial responsibility continues absent your withdrawing sponsorship. Also, if you have put through any petitions to sponsor your spouse’s relatives, think about withdrawing those petitions to avoid the financial liability of supporting them. This is not involving any issues as to how the divorce court may obligate you financially. That is a separate issue.

If the marriage is less than two years old when your NJ divorce is completed, the immigrant spouse will be “out-of- status” and potentially subject to deportation. Even if you were married overseas and the immigrant spouse came in under your sponsorship, the two year rule still holds. There is a two year conditional period that must be passed for the immigrant to be a permanent resident. Even the green card they were able to obtain after three months in the US is conditional. A NJ Divorce during the conditional two year period ends the basis for their presence in the US. Annulment has the same result.

On the other hand, if the petition to obtain full permanent residence status has been filed, signed by both of you and the necessary interview to assure the marriage is bona fide is successful, then your spouse would be granted permanent residence status. Then the sponsorship issues have ended in terms of your financial responsibility with the US Citizenship and Immigration Service and there is no risk of deportation for being out-of-status.

Even with a New Jersey divorce before the expiration of two years, there are circumstances where the immigrant spouse can seek a waiver from having to have the spouse’s signature on the forms for full permanent residence. There must be proof that the marriage was a bona fide from the beginning. The couple having a child would be demonstrative of a bona fide marriage as would joint ownership of property or bank accounts. The purpose is to show that the marriage was not a sham for the purpose of deriving the benefits of immigration to the US. If this can be done successfully, then deportation may be avoided.

In the event the divorce occurs after full permanent residence status was obtained, but did not yet reached the three year mark, the ability to become a US citizen may be delayed. When married to a US Citizen, an immigrant can seek citizenship based on a three year residency requirement. Where three years has not been attained in a marriage state, then the five year residency requirement to apply for citizenship would apply.

Annulments may be obtained upon allegations of the immigrant spouse committing marriage fraud. The immigrant spouse must contest this successfully to avoid annulment and prevent what will likely result in deportation.

If you need to discuss a NJ divorce and immigration, call the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400.