If you are an immigrant to the U.S. and are divorcing a spouse who is a U.S. citizen, you likely have a number of concerns about what will happen to your immigration status. If you’re a parent, your larger concern may be whether you’ll lose custody of your child.
Too many immigrants who are married to U.S. citizens stay in unhappy and even abusive marriages because they fear losing their child if they divorce. Every situation is unique, which is why it’s always important to seek legal guidance. However, let’s look at a few basic facts.
Courts’ considerations when determining custody
If parents can’t agree on a custody arrangement and a judge is determining child custody in divorce, their responsibility is to do what’s in the child’s best interests. Parents’ immigration status is typically not a factor.
However, they do have to look at how much stability each parent can provide. Obviously, if a parent is facing or could face deportation, that’s an issue. If they already have permanent resident (green card) status, then they don’t have to worry about losing it due to divorce and can remain in the U.S.
What about conditional green cards?
If your green card is still conditional (which it is for two years), divorce can present some complications. However, it doesn’t mean that you can’t move forward in getting permanent resident status as long as your marriage, as in most cases, was real and not a fraudulent attempt to get a green card.
Basically, if your green card status is still conditional, you can still file a I-751 petition when it’s time. It’s preferable to be able to file it jointly with your spouse, but if they refuse, you can seek a waiver to file it on your own. Just remember the deadlines. It must be filed 90 days before your two-year conditional status expires. If you’re a victim of domestic violence, there is a special program that can help you get a green card on your own.
The U.S. Citizenship and Immigration Services (USCIS) provides ways for non-citizens to remain in the country even if their marriage to a U.S. citizen ends. Your best course of action if divorce is or may be on the horizon for you is to seek experienced legal guidance as soon as possible. This can help you determine your options and protect your rights.