Any Floridian in this position should proceed carefully if they want to preserve their right to remain here. The collision of Florida family law and federal immigration law this situation creates is legally complicated and a misstep could increase the risk of removal from the country.
If you face potential immigration issues because of divorce, speak with a lawyer as soon as possible to understand the legal issues you face and ways to minimize divorce-related immigration problems. For example, legal counsel can explain how the timing of your divorce could affect the chance of harm to your immigration status. Or, there may be a different visa you could pursue that is not based on your marital status, or an alternate way to achieve permanent residency or citizenship.
Marriage-based residency
U.S. immigration law allows a citizen or lawful permanent resident with a green card to sponsor their foreign spouse to live and work here for two years. This is called conditional residency – conditional upon their marriage. For the foreign spouse to stay longer, the spouses must file a joint petition to remove the conditional status and for the foreign spouse to become a permanent resident.
However, if divorce predates the joint petition, the foreign spouse may still request a waiver to file the petition alone without the former spouse. The divorce may increase scrutiny from authorities to figure out whether the marriage was in good faith, or a sham to illegally help the foreign spouse into the country. To proceed, the divorced foreign spouse must gather evidence and documentation that the marriage was indeed authentic.
Often, the sponsored spouse will have a path to permanent residence or citizenship, depending on the circumstances, but becoming a lawful permanent resident or citizen can take significant time and effort. If the foreign spouse’s legal presence in the U.S. depends on their marital status with a U.S. citizen or permanent resident, it is natural if the marriage is headed for divorce to wonder whether the foreign spouse will lose their legal right to remain here.
Unfortunately, if divorce happens before the foreign spouse has become a permanent resident or citizen, their legal immigration status could be in jeopardy and the risk of deportation higher. An attorney can explain what legal options may be available to preserve the foreign spouse’s right to stay in the U.S.
Residency through a spouse’s employment-based sponsorship
The U.S. allows many foreign nationals to work here with green cards sponsored by their U.S. employers. This nonimmigrant visa is the H-1B, which allows the holder to bring their dependent spouse and children under 21 with them under an H-4 nonimmigrant visa. If a nonimmigrant couple like this faces divorce while here, the dependent status of the spouse could come into question and threaten the spouse’s right to remain.
This is a high-level look at a complex legal situation. There are many variations on how a spouse’s immigration status may be threatened by divorce, so consult an attorney with both divorce and immigration experience without delay.
