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Immigration Issues in Separation and Divorce Proceedings

Written by Laura F. Kelley, Esq.

Immigration through marriage is one of the most popular ways of immigrating to the United States, and in general, it’s one of the easiest. Marriage-based immigration processes require that the couple demonstrate a bona fide relationship and the US citizen or Lawful Permanent Resident petitioner must have sufficient resources to support his/her spouse.[1]

US citizens can even bring a foreign-born fiancé in the United States prior to marriage for 90 days. But as we all know, relationships are hard work and not all marriages last. This article seeks to answer what happens in marriage-based immigration cases in the event of separation and divorce proceedings.

K-1 Fiancé

A K-1 visa is available to a foreign-born individual brought to the United States by their US citizen spouse. An individual who enters on a K-1 visa has 90 days in which to marry their spouse and then apply for an adjustment of status here in the United States. An adjustment of status means the foreign-born individual receives a green card and becomes a lawful permanent resident.

If the couple does not marry their K-1 fiancé in this time period and the foreign national overstays their K-1 visa, the foreign national is barred from adjusting status in the United States with very few exceptions (one exception is if they seek to benefit from the Cuban Adjustment Act by marrying a Cuban US lawful permanent resident). When a K-1 fiancé marries his or her US citizen spouse, he or she typically becomes a conditional lawful permanent president.

A conditional lawful permanent resident is one who has been married to the petitioning US citizen or lawful permanent resident spouse for less than two years at the time of adjustment. These individuals must go through a process known as the removal of conditions in order to maintain their lawful permanent resident status. Essentially, the removal of conditions process removes the conditional, i.e, temporary nature of the lawful permanent resident status. The removal of conditions is another way in which the US immigration authorities attempt to root out immigration fraud. If the conditional lawful permanent resident does not remove the conditions on his/her lawful permanent resident status, he/she will end up in removal proceedings in immigration court and face removal (colloquially known as deportation).

Because the removal of conditions process creates an extra level of security to ensure that the marriage is bona fide, a separation or divorce early in the marriage can make the process of removing conditions more onerous. Indeed, the petitioning spouse is required to sign the form I-751 form to remove conditions unless the applying spouse has a waiver such as in the case of divorce or domestic violence.

Where the couple is separated and the petitioning spouse refuses to sign the form I-751 or appear at the removal of conditions interview, expert immigration advice is needed. At the removal of conditions stage, where there is a divorce waiver, the applying spouse will still need to provide ample evidence that the marriage was bona fide. The failure to do so can result in the denial of the removal of conditions and lead to removal proceedings in immigration court.

When a couple has been married for more than two years at the time of an adjustment of status, then the applying spouse receives lawful permanent resident status without conditions. This individual will not be required to remove conditions. Divorce proceedings after this stage will not affect the beneficiary spouse’s status in the United States.

However, this does not mean that US immigration authorities will no longer have the opportunity to look into the bona fide nature of the marriage. In fact, it is at the naturalization stage of immigration  where many instances of marriage fraud are found. The US Immigration authorities will take a look back at marriage-based cases where there is a divorce in order to determine whether any marriage fraud occurred.


Should a marriage breakdown before or during the pendency of adjustment of status proceedings and domestic violence (battery or extreme cruelty) is involved, the beneficiary spouse may seek to self-petition based on the Violence Against Women Act (VAWA).

VAWA protects all individuals who are survivors of domestic violence, not just women. However, one must apply for a VAWA self-petition within two years of being divorced from their abusive US citizen or LPR spouse. Abused children and parents can also benefit from VAWA.[2]


It’s  important to note that divorce proceedings also affect the foreign national children whose applications are dependent on marriage-based proceedings. They must also remove conditions if their parent is a conditional permanent resident.

Additionally, it is worth noting that stepparents may petition for their foreign national stepchildren, even if the marriage creating the step-relationship has broken down. Where the stepparent and stepchild relationship is ongoing, despite the breakdown in the underlying marriage, the stepparent can still petition for the foreign-born child.

Divorce proceedings can also affect couples who immigrated together in other ways. For example, should a couple enter on temporary non-immigrant visas divorce, the derivative spouse will lose his or her status. Additionally, divorce may affect a couple seeking asylum before the Asylum Office or Immigration Court.

Public Charge

It’s also worth noting that an US citizen and lawful permanent president who wishes to petition for a family member must demonstrate that the foreign national will not become a public charge (i.e. someone who uses public benefits). Indeed, each petitioner must sign a contract to that effect with the US government. This means that should the foreign national beneficiary receive certain public benefits, then the US government can recoup those costs from the petitioner. Moreover, this obligation remains until the foreign national become a US citizen or accumulates 40 quarters of work with the Social Security Administration. That said, this type of recoupment of public benefits is exceedingly rare because recent immigrants in this position are not eligible for this type of public benefits.


While marriage-based immigration is indeed one of the simplest ways for many to become a US citizen, it is intrinsically tied to the reality of relationships where the simple can become complicated. If there is any case where immigration issues are present, an experienced immigration attorney should be retained in order to advise on consequences and options as the individuals move forward in their cases.

[1] It is worth noting that marriage to a US citizen alone will not allow someone who does not have a lawful entry into the United States to receive a visa or become a resident. The intricacies of immigration law, of which there are many, are beyond the scope of this article.

[2] Special Rule Cancellation of Removal may be available to foreign born individuals married to abusive US citizen or LPR spouses who find themselves in removal proceedings.