Marriage between a legal permanent resident or U.S. citizen and an alien can bestow immigration and non-immigration benefits to that alien. Likewise, the termination of that marriage through divorce can revoke those benefits too. There are many nuances concerning divorce and immigration. This article will discuss these some of these nuances with broad strokes.

Overview

In most cases, when immigration benefits are conferred to an alien based on their marriage to a U.S. permanent resident, U.S. citizen, or beneficiary of an immigrant petition, the termination of that marriage (via divorce) will most likely adversely affect the pending immigration petition of the alien.

Additionally, divorce also adversely affects the legal status of an alien if he is a conditional permanent resident. This condition occurs when the alien's conditional green card was obtained via marriage to a U.S. citizen. Divorce may also adversely affect an alien's U.S. legal status as a non-immigrant when the alien's non-immigrant status was based upon marriage to certain classes of other non-immigrants.

Divorce After Conditional Green Card

If an alien obtained his green card based on a marriage with a U.S. citizen spouse or green card holder, that alien will be granted conditional permanent residence. This condition only applies if the marriage took place within two years before the date permanent residence was conferred. The conditional green card means that the alien's permanent residency can be revoked if the couple's marriage was a sham or entered into solely for immigration purposes. Besides this condition however, the conditional green card holder has the same rights as any other green card holder. The condition may be removed within ninety days prior to the two-year anniversary of the permanent residence being granted to the alien.

If the conditional green card holder seeks a divorce from his U.S. citizen or legal permanent resident spouse, the alien will have to show that the marriage was entered into in good faith. If the condition was never removed, the alien may also show he was not at fault for his failure to file the joint petition to remove the condition. Generally speaking, when the alien with the conditional green card can show that the marriage was entered into in good faith, it is presumed that he was not at fault for failing to file a joint petition. The couple's child together and producing evidence that the couple owned property jointly are two ways to prove that a marriage was entered into in good faith.

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