Law Offices of Rong T. Kohtz

Many people in New York are from other countries. When the divorce becomes inevitable, both the immigrant spouse and the citizen/permanent resident spouse will also have to consider how to handle immigration issues. Removal proceedings sometimes become an eminent possibility after a divorce. Few divorce lawyers are familiar with immigration consequences following a divorce. You should bring their attention to your immigration concerns. This article intends to help you manage your immigration matters when you are considering a divorce.

1.     Applicants with Pending Application to Adjust Status

There is no grace period after your divorce while an immigration application is pending. Most immigration officers will consider you out of status although you have not received any notice. As soon as the USCIS denies your application on the ground of divorce or your ex-husband withdraws the application, the immigration authority will initiate a removal proceeding. However, the USCIS will grant voluntary departure in most cases.

You should try to reinstate your nonimmigrant status before the marriage is legally terminated. Alternatively, you should withdraw your application sponsored by your spouse and file an immigration application based on other grounds. If you timely file a reinstatement of nonimmigrant status or an application of adjustment of status, you may be able to extend your stay without accumulating unlawful presence. The accrual of time tolls for up to 120 days when a bona fide application for visa or adjustment of status is filed. This is true even if your application is denied later. For example, if you apply for a visitor visa to extend your stay after your divorce and it is denied later, 120 days will be subtracted from the number of days of your stay after your divorce. There are several possible ways for you to maintain your status and continue your life the U.S. after a divorce. You should talk with an attorney to adopt an appropriate strategy in order to maintain your legal status in the U.S.

Failure to maintain your status will subject you to inadmissibility. The 3-year bar of readmission is applicable to people who have illegally stayed in the U.S for more than 180 days but no more than a year. Those who have accrued unlawful presence of more than a year will not be admitted into the U.S. in the next 10 years.

2.     Conditional Permanent Residents

A person who immigrates to the U.S. based on a marriage which is less than two years old at the time of his admission will receive conditional permanent residence. The conditional permanent residence status lasts for two years. To attain full permanent resident status, the conditional resident must file a petition with the USCIS prior to the second anniversary of his admission as an immigrant. At that time, if the marriage is still intact the immigrant spouse will receive a full permanent residence. Conversely, if the marriage is dissolved the immigrant spouse will lose his immigrant status and become deportable.

Where the qualifying marriage has ended in divorce or annulment during the two-year conditional residency period, the conditional resident may apply for a waiver of the joint filing requirement based on the parties' good faith when they entered into the marriage. However, the good faith waiver cannot be filed when a divorce has been filed but not yet complete. Moreover, the waiver is not available to a conditional resident whose marriage has broken down but which has not and will not be legally terminated in the foreseeable future.

3.     Domestic Violence Victims

Domestic violence victims may make immigration applications for themselves and on the behalf of their minor children. If you are a battered spouse, you should seek assistance from an attorney immediately.

By Rong Kohtz, Esq., Law Offices of Rong T. Kohtz