Immigrant asking divorce in USA
Know More On Immigrant Divorce
For those people that are coming to the US undergoing a divorce can be very complex and the immigration laws can be very confusing also.
If an alien, a permanent resident or a non US citizen marries a citizen of the US, he/she can obtain the immigrant benefits and after the divorce of the couple the status of the alien spouse should be determined. The divorce is the legal termination of the marriage between the two parties to the martial bond. In the case of immigrant divorce the proceedings depend upon on the laws of the state or the country where the marriage had taken place. Under the state law of the US if any state identifies any action to end a marriage in the form of a divorce the marriage is said to no longer exist in the eyes of law for the parties to the divorce for the sake of immigration reasons.
Under immigration law of the US the legal or the physical separation of a married couple does not constitute the termination of the marital bond legally. This case is upheld even when the couple has no desire to stay with one another. There are certain cases where the legal separation of the couple that has been granted by a competent court of law is considered to be a legal termination of marriage under immigration law. This often occurs when the law of the state or the nation transforms legal separations automatically into divorces after a certain period of time has transpired.
Know More On The Effect Of Divorce On The Legal Status Of Alien Non-Immigrants
There are many instances of alien non-immigrants that had gained their legal status in the USA on the basis of their marriage to another alien non-immigrant. Like for example the spouse of a H-1B specialty US worker get a non-immigrant status that is called H-4 that is based on the legal status of the H-1B spouse. The marriage of the non-immigrant to the alien is a pre-requisite for the non-immigrant status in the above circumstances. There is an addition provision that is contained in law that in certain cases the unmarried or the minor children of the alien has the right to obtain legal status in the nation on the basis of the marriage of the alien parent to the non-immigrant. The most common examples of the above instances are the F-2 and the J-2. This in turn represents the legal status of the dependents of the holders of H-1B, F-1 and J-1 respectively. If the marriage has been terminated by law, the person that is holding the dependent legal status would come out of the said status immediately as the relationship that has granted that status is terminated. When this occurs the said person needs to seek out an alternative to remain in the US before the divorce of the marriage takes place.
Know More On Divorce Before Permanent Residence Is Conferred
There are two ways where an alien can get permanent resident status via their spouse. One of the two ways is by qualifying as being the direct beneficiary of the immigration petition that is done through sponsoring the citizen spouse. The second way is to qualify for the status of permanent residence via a petition where the spouse of the alien is allowed to include the alien on his or her petition for immigration as a derivative beneficiary. In both of the above circumstances the alien is treated as the beneficiary of the immigration petition on the grounds of the marriage that has taken place. In event of the marriage being terminated before the permanent residence occurs the derivative or the beneficiary will not be considered to be eligible for the purposes of permanent residence via this relationship.
There are other aliens that apart from the beneficiary spouse that may also depend on the marriage to get their permanent resident status. If the couple has children, the children of the aliens who are married to the citizen of the US may get permanent resident status via the step relationship with the alien parent’s spouse. Like in the above case, if the marriage ends before the status of permanent resident is granted the children too will not be eligible for the status of permanent residence in the country.
Know More On Divorce After The Conditional Green Card Has Been Issued
Those aliens that have got their permanent resident status on the basis of their relationship with a US citizen spouse or a step-parent are granted permanent resident status if the marriage has taken place two years before the conditional permanent resident status has been granted. The term conditional permanent residence means that the marriage that was entered into can be terminated at any time if it is proven that the marriage is a sham marriage or a marriage that was entered into to get immigration to the US.
Divorce In Event Of Immigrant Spouse Abuse
Under The Immigration Law of The United States permits an immigrant to get permanent citizenship of the US by marrying a citizen of that country. This permanent citizenship is issued in the form of a Green Card. Once the marriage has occurred the US citizen can request the American Government an immigrant visa and a Green Card to be given to his/her spouse based on the marriage held. This visa and Green Card is issued by the Citizenship and Immigration Services department of the US Government. The above procedure seems very simple but in reality it is not so easy as it looks. The right of marriage is given to the citizen of the USA but the country does take steps to ensure that spouse abuse does not occur due to the above.
In order to ensure that there are no cases of spouse abuse the US Government has implemented a law in the year 1994 called the Violence against Women or VAWA Act. This Act was amended in the year 2001 and it also provides to be a great aid to spouses that are victims of spousal abuse. Under this law it was laid down that the victims of immigrant spousal abuse that are married to a US citizen are entitled to apply for a Green Card on their own however in event of divorce or legal separation the status of such an application lies at the discretion of the US Government.
There are chances that the abused immigrant can get the Green Card after it has been proved that divorce has been applied for on the basis of extreme cruelty that has been meted out to the spouse. In the event of a legal separation the spouse can apply for a Green Card if the divorce has taken place from the US citizen in the past two years.
Filing For Immigrant Divorce
There are many people in the US that are immigrants from other nations in the world. There are circumstances when these people marry citizens from the US and unfortunately when the marriage does not work out they require resorting to divorce. If you are an immigrant seeking for divorce you should be aware on how to handle these issues that are important to you and your spouse. When the issue of immigrant divorce is raised the courts in New York are sympathetic towards the immigration spouses and the children of them. The courts of law make a consistent endeavor to maintain the stability and the continuance of the life of the immigrant spouse and the child/children. There are a handful of lawyers that are acquainted with the immigration law procedures and when you are going in for an immigrant divorce you must ensure that you invest in a good one. The lawyer should be qualified enough to handle your immigration concerns and at the same time preserve your immigration rights.
For those applicants that have pending applications to adjust to their resident status there are certain things that you should keep in mind. The first thing is that there is no grace period after the application for divorce is filed. Once you have filed the divorce you would be considered to be out of status even though you do not receive any notice with regard to this. The removal proceedings become a possibility after the divorce and this is done by the immigration authorities. When the application has been denied the USCIS will start the proceedings however in most of the cases it will grant you voluntary departure.
In the case of an immigrant spouse he/she should make an attempt to reinstate the status of a non-immigrant before the marriage is terminated by the court legally. You have the option of withdrawing the application that has been filed by your spouse and filing an application that is based on another ground. If you file a reinstatement of the non-immigrant status or any application of adjustment of the status that is based on the ground other than that of marriage you are allowed to extend your stay without inviting unlawful presence. The time span for the above is 12 days when the application is filed for the adjustment of the status and visa. The time span also holds well when the application is later denied. This means that if you are applying for a visitor visa after the stay of your divorce and it is denied after that, there will be 120 days subtracted from the amount of days of your stay after the divorce. There are other possible ways for you to successfully maintain your status and also continue living in the USA after the divorce. In order to know about them it is wise and prudent to talk to a divorce lawyer regarding this. In this manner you will be in a position to maintain your legal status successfully.
If you fail to maintain your status this will subject you to inadmissibility and there is a 3 year bar of readmission that is applicable to those individuals that have illegally stayed in the USA for over 180 days but not more than one year. For those individuals that have accrued unlawful presence for over a year in the US they will not be allowed into the country for the next ten years.
In the case of conditional permanent residents when the qualifying marriage has terminated into divorce or an annulment during the 2 year conditional residency interval, the conditional resident can apply for the waiver of the requirement filed jointly. This can be filed on the basis of the good faith of the parties when they had entered into the marital bond. However, it should be noted that the good faith waiver is not available to any conditional resident whose marriage had been broken down and which has not been or will not be terminated by law in the future. It is thus essential to take into consideration the timing of the divorce and the eradication of the condition of permanent residency where there is a case involving the conditional permanent resident.
In the case of those individuals that are victims of domestic violence they are entitled to make immigration applications for themselves. They can also make the applications on behalf of any minor children that they may have and in case you have been severely tortured you should take the immediate advice of a legal professional.
From the above it is evident that the divorce laws in the US concerning immigrants is very complex. When you are filing an application for divorce under the above you must ensure that you hire the services of a good legal professional that will understand the laws that are applicable to you. With the aid of the right lawyer you will be able to handle the complex issue of immigrant divorce in a very effective and smooth manner without any hassles. The attorney will guide you through the entire process and also help you attain your rights too.
Laws and legal breakup in all states of United States of America
Laws and legal breakup in Britain and United Kingdom
Laws and legal breakup in Canada and Quebec province
Laws and legal breakup in Australia and Oceania
Links - Divorce USA
IMPORTANT ! Laws, informations and attorneys listed in our website are not referred or endorsed by Divorce and Separation Laws. You should always have professionnal advices from a certified lawyer in your state / county. We do not pretend to replace an attorney. Advices from a Legal Divorce attorney is highly recommended
Divorce in USA
State-By-State Divorce Laws
> New York