Conditional permanent residence is your status if your immigration is based on the status of your spouse. What that means is if you came to the United States to marry your spouse, who is a U.S. citizen, you were given the status of ‘conditional permanent residence’. If you and your spouse are thinking of getting a divorce and you have not fulfilled specific residency requirements necessary to become a permanent resident, your status may be subject to change. It is important to contact Minnesota immigration attorneys as well as an experienced group of divorce lawyers to discuss how to preserve your immigration status during this complicated time in your life.
The status of conditional permanent residence runs for two years. Before the end of that two year period (within ninety days prior to your second anniversary) you are required to petition the United States Citizenship and Immigration Service to obtain permanent residence. Both you and your spouse must together file a I-751 petition which makes your residency permanent.
However, if you divorce prior to obtaining the status of permanent residency, it can cause serious problems with your immigration status. If your marriage is no longer valid, you lose your conditional permanent residence status and you could possibly be deported.
Timing is Critical
Because a pending divorce can jeopardize your application for permanent residency, it is imperative you start and complete the application process for residency before you begin divorce proceedings.
In certain cases, you may be able to file a waiver of the joint filing requirement if you get divorced prior to the two-year period. The USCIS may issue an exception to the two-year rule if you can prove you truly entered your marriage for the right reasons. Note that waivers are the exception not the rule and do not count on the USCIS to grant your exception request.
How Does Separation Affect My Status as an Immigrant?
There are different types of separations. Let’s discuss each type and the effect each could have on your immigration status.
A trial separation is an agreement between you and your spouse to take a break from the marriage and live apart for an undefined period of time. You are still legally married so it does not generally affect any of the legal rights of being married or your current immigration status.
Permanent separation takes the trial separation to the next level with no plans of reconciliation. In some states, a status of permanent separation could affect your property rights and possibly your immigration status. Trying to become a permanent resident when you and your spouse are permanently separated could negatively affect your application for permanent residency.
A legal separation in some states is known as a limited divorce. The court states while you are no longer married, you aren’t divorced either. It is a different legal status. Sometimes couples choose legal separation over divorce to keep insurance benefits or immigration status.
If you are planning to get a divorce but are in the process of obtaining your permanent residency status, a trial separation is the least risky means of protecting your existing status.
Contact the experienced team of immigration and divorce attorneys near you to discuss your present immigration status and to avoid jeopardizing that status when considering filing for divorce.
Thank you to our generous contributors at the law offices of Johnston Martineau for the above information.