News Articles


Jul 19 2003
TPS for El Salvador Extended

Jun 29 2003
Honduran and Nicaraguan TPS Extension Deadline July 7, 2003

Jun 3 2003
DUI Crime of Moral Turpitude?

May 9 2003
Divorce and Immigration

Feb 17 2003
Extension of Special Registration Group 3 & 4

1  2  3  [4]  5  6   

Divorce and Immigration

Many people marry U.S. Citizens and apply for their immigration status through their marriage.  Generally, if the marriage is less than two years old at the time the government grants the alien's status, the alien is provided a "conditional resident status."  The conditional period is often two years. 

Prior to the end of the two years, the alien and the citizen spouse are required to file an application jointly to remove the conditions.  This joint application is to be submitted with evidence that the marriage was entered into for legitimate purposes and that the couple have been living together as husband and wife. 

But what happens if there is trouble in the marriage?  Often times the marriage does not work out even though it was entered into for legitimate purposes. Sometimes this occurs when the citizen spouse becomes abusive, cruel, intolerant or simply abandons the alien.  When this occurs, the alien has the possibilty of filing an application to remove the conditions and request a waiver of the joint application requirement.  Prior to a recent memo from the BCIS, the alien could begin this process at the end of the two year term even if the alien had not yet finally terminated the marriage.  This would protect the alien from being wrongfully put in removal proceedings or losing status while they attempted to end the marriage.

The recent BCIS memo ends this opportunity.  The new policy issued by the BCIS requires the alien who wishes to submit an application on his or her own and request a waiver to first have the termination of the marriage finalized.  The termination of the marriage must now occur prior to the filing of the alien's application to remove conditions on his or her own.  This can complicate things for person whose spouse abandons them or abuses them toward the end of the two year term.  Essentially, such an alien would be forced to go out of status before submitting their application to waive their joint filing requirement and remove their conditions.  Interestingly, this would increase the chance of an abused or abandoned alien being put into removal (deporation) proceedings and/or losing the right to work.  Thus, creating even more hardship on the alien victim.

This new procedures stands in contradiction to the policies underlying the Violence Against Women Act ("VAWA").  These polices attempt to prevent aliens from being trapped in bad marriages because their status in this country is attached to their marriage.  Nevertheless, there is hope for the alien.  If put in removal proceedings, the alien may request the immigration judge to continue the case until such time as the divorce or annulment is finalized.  Also, the alien can file a late application with certain limitations and risks. 

More importantly, the alien could seek the assistance of counsel prior to commencing the family based suit.  This way, the alien could request the assistance of an immigration law and family law practioner in devoloping a strategy in the divorce in relation to these matters.  For example, discovery in a divorce can often allow a platform for an attorney to gather important evidence that the marriage was entered into for legitimate purposes and ended through no fault of the alien's.  This evidence can be critical to the government in removing the conditions of the alien's status.  This is especially true when the alien is requesting that the application be granted through a waiver of the joint application requirement.

Written by, Sanjay S. Mathur, Attorney at Law, May 9, 2003.