Divorce And The Effect On Immigration Status

Posted by: Gerald A. Maggio, Esq.

Top family lawyers Orange County; The Maggio Law FirmImmigration, in a few cases, can be affected by divorce. This is specially applicable for people who has immigrated to the United States based on marriage which has, until that time, not completed two years at the time the said person has gained entry into the United States. The conditional resident, if he or she wants to obtain a status of full permanent residence, should file the requisite petition with US Citizenship and Immigration Services or USCIS. This must be done before second anniversary of being admitted into the country. If the marriage is intact at that point of time, the immigrant spouse will get full permanent residence. On the other hand, if the marriage gets dissolved, the concerned immigrant spouse will lose his or her status. The person could get deported.

Sponsored spouse and divorce

In case you have sponsored the immigration application of your spouse and find yourself at the end of your marriage, you must withdraw the sponsorship as quickly as possible. This is as you have assumed all responsibilities of being supportive of your spouse and the latter’s dependents. When you signed affidavit of support, you have accepted all the legal responsibility when it comes to financially supporting all sponsored immigrants until the time they become citizens of the United States. Do note that a divorce will not terminate all financial responsibilities towards the immigrant spouse prior to he or she gaining US citizenship. Your responsibility will be over only if your spouse exits the US. You must withdraw any Affidavit of Support and the Petition for Alien Relatives as quickly as possible in case divorce proceedings are near.

Post divorce immigration applications

When the USCIS have to make a decision on a particular immigration application based on marriage, the immigrant spouse will then be regarded as out of status when the marriage is dissolved. A strong possibility exists that your alien spouse could be departed after the divorce is finalized.

Maintaining immigration status

If you are an alien spouse and is conditional alien resident being in the US for a minimum of two years, then you will have no need to ask for your partner’s help when it comes to processing I-751 petition. You can ask for a waiver if the marriage is lesser than two years. This waiver can be based on grounds like extreme hardship on deportation, battered spouse or termination of good faith marriage. Having a child also halts deportation proceedings.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

The Status of K1 Visa Fiancees After Separation or Divorce

Posted by: Gerald A. Maggio, Esq.

Divorce Attorneys in Orange County; The Maggio Law Firm, Inc.The K1 Visa is exclusively given to fiancées who come to the U.S. to get married. Getting married is a joyous occasion and individuals who come from different countries are eager to embark on a new journey with their partners. However, all marriages don’t work out and some end in divorce or separation. In cases like these, the status of K1 fiancées become a little confusing. Usually, U.S. immigration law wants the K1 fiancée to marry his/her partner within 90 days of arrival on U.S. soil. After getting married, the couple must file for Adjustment of Status.

K1 fiancées looking for a divorce before the Adjustment of Status gets through can get one provide all criteria are met. The rules have substantially changed in favor of foreign nationals who want to get divorced from their American partners. It is expected that the new laws and rules will help K1 fiancées get a green card after a smooth and easy divorce on American soil.

New BIA (Board of Immigration Appeals) rule

The BIA recently ruled that K1 fiancées are eligible for the green card even if they get divorced before the Adjustment of Status application is finalized. The new BIA ruling is good news for individuals who want to get a divorce from their American partners in America. The new rule helps individuals who want to obtain a green card after their marriage ends. Earlier, the only way that could be obtained was through a marriage with an American citizen for a certain period of time. Now, the green card can be provided through the person who filed the K1 petition. However, K1 visa is restricted to fiancées and cannot be changed to H-1B or student visa.

The BIA has also emphasized on the fiancées’ ability to demonstrate that the marriage occurred in good faith and was willfully done by the individual. The ruling does not apply to individuals who never got married to their American partners or who are unable to show that the marriage took place.


The K1 Visa helps foreign nationals obtain a green card in America even if circumstances force them to divorce their partner before their status is updated in the country. The new rules for the visa will allow foreign fiancées to become green card holders even after the divorce. In every case, however, it is always better to hire an attorney or a law expert who can provide proper guidance on matters of divorce.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

No Legal Advice Intended: This website includes information about legal issues and legal developments. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. Full disclaimer.