How Divorce Affects Family-Based Immigration Petitions in New Jersey

When two people get married, the marriage can sometimes create a path for one spouse to gain permanent residency in the United States. This process is commonly known as family-based immigration. However, if the couple decides to divorce, it can have serious consequences for the immigration status of the spouse seeking residency. Divorce can complicate the process, and understanding how it affects family-based immigration petitions in New Jersey is important for both parties involved. Many families find this situation difficult, and it is essential to be aware of the rules that apply to such cases.  At, The Scheer Immigration Law Group , we are here to guide you through the legal process and help you navigate the complexities of your case.

Understanding Family-Based Immigration

Family-based immigration allows U.S. citizens and lawful permanent residents to petition for their foreign-born spouses to become lawful permanent residents, also known as green card holders. The process starts with the U.S. citizen or permanent resident filing a petition on behalf of their spouse. After the petition is approved, the foreign spouse can then apply for a green card. This process can take several months or even years depending on various factors such as the relationship status, immigration status of the petitioner, and government processing times.

However, family-based immigration does not always guarantee that a person will get a green card. If the couple separates or divorces during the process, it can affect the petition, and in many cases, it may cause the application to be denied or delayed. For those living in New Jersey, understanding how divorce can impact family-based immigration petitions is crucial to navigating this complex situation.

Divorce Before the Green Card Approval

If a couple decides to divorce before the green card is approved, it can have a serious impact on the immigration process. In cases where the marriage was the basis for the green card petition, the foreign spouse may lose their eligibility for permanent residency if the couple separates before the application is approved.

For couples who have not yet received approval on the petition or green card application, the divorce generally results in the automatic termination of the immigration process. In this case, the U.S. Citizenship and Immigration Services (USCIS) will usually deny the petition and the green card will not be granted. This can leave the foreign spouse without a legal basis to stay in the United States, which may force them to leave the country.

It is important to note that while divorce can stop the immigration process, there are some situations where a person may still be able to apply for a green card even after the divorce. For example, if the foreign spouse is a victim of abuse or domestic violence, they may qualify for protection under the Violence Against Women Act (VAWA) and be able to continue with the immigration process despite the divorce.

Divorce After Conditional Green Card Approval

For couples who have already received a green card based on their marriage, the impact of divorce depends on whether the green card is conditional or permanent. In many cases, when a couple has been married for less than two years, the foreign spouse will receive a conditional green card. This means that the green card is only valid for two years, and the couple must apply to remove the conditions on the green card before it can become permanent.

Divorce can complicate the process of removing the conditions on the green card. Normally, both spouses are required to jointly file a petition to remove the conditions within 90 days before the conditional green card expires. However, if the couple divorces before the conditions are removed, the foreign spouse may be required to file a waiver and prove that the marriage was entered into in good faith. This means showing that the marriage was not solely for immigration purposes.

In New Jersey, as in other states, proving that a marriage was genuine can involve providing evidence such as joint financial records, proof of cohabitation, and testimony from family and friends. If the foreign spouse can demonstrate that the marriage was bona fide, they may still be able to obtain a permanent green card even after a divorce. However, the process can be more challenging and may require additional documentation and legal support.

Divorce After Permanent Green Card Approval

If the foreign spouse has already received a permanent green card, the impact of divorce is generally less significant. Once a person becomes a lawful permanent resident, they are typically allowed to remain in the United States regardless of their marital status. This means that a divorce will not usually cause the foreign spouse to lose their green card.

However, divorce can still have some consequences even after the foreign spouse has obtained permanent residency. For example, if the foreign spouse plans to apply for U.S. citizenship, they may face delays or additional scrutiny. Normally, a green card holder can apply for citizenship after five years, but if they are married to a U.S. citizen, they may be able to apply after only three years. If the couple divorces before the three-year period is up, the foreign spouse will have to wait the full five years before applying for citizenship.

Additionally, when applying for citizenship, the USCIS may review the person’s entire immigration history, including the circumstances of their marriage and divorce. If the USCIS suspects that the marriage was not genuine, they may deny the citizenship application or even attempt to revoke the green card. For this reason, it is important to be fully prepared when applying for citizenship after a divorce.

Impact on Children and Other Family Members

Divorce can also affect family-based immigration petitions involving children or other family members. For example, if the foreign spouse has children from a previous relationship who are also applying for green cards, the divorce may impact their eligibility as well. In most cases, the U.S. citizen or permanent resident spouse must petition for the stepchildren to receive green cards. If the marriage ends before the green card process is completed, the children may lose their eligibility unless other arrangements are made.

Additionally, if the foreign spouse has other family members who are hoping to immigrate to the United States, the divorce may delay or complicate their petitions. It is important to seek legal advice to understand how the divorce may impact the immigration status of other family members.

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Steps to Take if Facing Divorce During the Immigration Process

Going through a divorce can be stressful and overwhelming, especially when immigration status is at risk. If you are facing divorce while in the middle of a family-based immigration petition, there are steps you can take to protect your rights and understand your options.

First, it is important to seek legal advice from an immigration attorney who understands the laws and regulations in New Jersey. An attorney can help you navigate the complex process and determine the best course of action for your case. They can assist with filing the necessary paperwork, gathering evidence, and representing you in any legal proceedings.

In addition, it is crucial to keep detailed records of your marriage and the immigration process. This includes maintaining copies of all documents related to your marriage, such as joint financial records, leases, and photographs. These records may be necessary if you need to prove that your marriage was entered into in good faith.

It is important to be honest and transparent throughout the process. Providing false information or attempting to deceive immigration authorities can lead to serious consequences, including denial of your petition and possible removal from the United States. It is always best to approach the process with integrity and to follow the advice of a trusted attorney.

Divorce can complicate the family-based immigration process, but it does not always mean the end of your immigration journey. If you are facing divorce while going through the immigration process in New Jersey, it is important to seek legal assistance to protect your rights and understand your options. The Scheer Immigration Law Group can provide the guidance and support you need during this challenging time. Our experienced team is here to help you navigate the complexities of divorce and immigration law. Contact us today to schedule a consultation and learn how we can assist you with your immigration case.