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For Some New Immigrants, Divorce is a Ticket Home

Going through a divorce is difficult enough without the added worry of the immigration consequences. Unfortunately, the issue just can’t be avoided. People who immigrate to the United States through a spouse and end up getting divorced can face serious problems. The problems occur when the immigrant has not yet become a Lawful Permanent Resident (LPR) of the United States.

There a many reasons why a new immigrant may not have obtained LPR status. It could simply be that the application is still pending. If a couple is married for less than two years at the time that the immigrant petition is filed, the new immigrant gets “conditional approval” instead of the right to apply for Lawful Permanent Residence. This means that the immigrant can lawfully reside in the US but doesn’t get the right to become an LPR right away. After two years, the immigrant can apply to have the “conditional approval” removed and can then apply for permanent status.

A divorce that occurs before the new immigrant has become an LPR will disrupt the immigration process. If the basis of the immigration is the spousal relationship, the grounds for immigration disappear when there is a divorce. In some cases, the immigrant may have other grounds for immigration including other family relationships or employment, but in many cases these options are not available. It’s possible that an immigrant who has been living in the United States for years could lose the right to remain in the country. An immigrant who is facing this possibility should consult an attorney to find out if there are other ways to remain lawfully in the United States. Because immigration law is an area that is riddled with exceptions, it is worthwhile to talk to an expert.

For example, one exception that will allow a person to remain in the United States, despite having no independent basis to immigrate, is for victims of domestic violence. Unfortunately, immigrants can be taken advantage of by their citizen or Lawful Permanent Resident spouse because their immigration status is dependent on the spouse. Immigrants involved in abusive relationships are often reluctant to notify authorities or to leave the relationship for fear of losing their right to remain in the US. Congress recognized this problem and included several provisions in the Violence Against Women Act (VAWA) to address it.

One option made available through VAWA is for a battered immigrant to “self-petition.” This means that a battered persons’ immigration status is no longer tied to their spouse. They can apply to become Legal Permanent Residents without the approval of their spouse but they must prove that they were subjected to battery or extreme cruelty during the marriage. They must also prove other factors including that the marriage itself was a valid marriage entered into in good faith. Basically, that the marriage was not a sham for immigration purposes. If the immigrant demonstrates everything that he or she must prove and there are no issues which would make the immigrant inadmissible (criminal acts or violations of immigration laws, for example), the immigrant can obtain LPR status.

This process is not the only option for a battered person. There are visas available for people who have suffered physical or mental abuse flowing from criminal activity (U visa) and visas for victims of sex trafficking (T visa). The bottom line is, immigration law is complex, and any person who may lose the right to remain in the United States due to a divorce, whether abuse is involved or not, should meet with an immigration attorney to explore all of his or her options.

Worksheet: Can I “Self-Petition” Under the Violence Against Women Act?

To read and print out a copy of the checklist, please follow the link below.

Can I “Self-Petition” Under the Violence Against Women Act?

You can download a free copy of Adobe Acrobat Reader here

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