Divorce is always an unpleasant legal process, it is even more unsettling when divorcing an Immigrant. Your foreign spouse may have been someone you brought in on a fiance visa or possibly met while they were on a visa in the United States. Regardless of the situation, everything revolves around whether the US Citizen or Green Card Spouse provided the other spouse with a Green Card.
Sponsoring someone’s green card can have a lasting liability of support, outside of possible alimony or child support. All spousal green card filings have an Affidavit of Support, the I-864, which is a contract to support the soon-to-be green card spouse. Divorce does not end or terminate that contract.
Apart from the I-864, many spouses consider whether their marriage and divorce would classify as “marriage fraud.” This is not really an issue, unless the marriage was a sham or if the spouses separated days or weeks after acquiring the spousal green card. If the marriage lasted years or a child was produced from the marriage, the marriage would likely be classed as bona fide. Although a divorce is unpleasant, a broken or dysfunctional relationship does not equal marriage fraud.
Many spouses think that the US Citizen can take away a spousal green card. That is not possible. Only two people can take away a green card: (1) the green card holder can abandon the green card by returning it to the US Government and/or leaving the US for more than the allotted time and (2) a deportation judge can order it terminated for qualifying crimes.
Generally, the divorce should be handled by a family law attorney. All custody and property distribution should be properly performed. If the immigrant does return to the home country, properly performing later legal actions become difficult, like custody or the sale of a house in both spouses’ names.
See our Blog Post on the I-751 Waiver, if you have a Conditional Green Card:
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