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Home Tips Can I Get a Divorce in the USA as a Foreign National?

Can I Get a Divorce in the USA as a Foreign National?

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When living in a foreign country and married to a citizen of that country, there are many questions that arise when the marriage turns sour. Divorce is never a fun time in anyone’s life. However, when you have the additional worry about not being able to remain in the country where you have built a life, it can be a nightmare. Fortunately, in many cases, foreign nationals can divorce their US citizen spouses and remain in the country legally.

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The Most Important Factor Is When You Get Divorced

As you can imagine, determining whether you have to leave the country after a divorce depends largely upon how long you were married to your spouse. Most people who have been married to their US citizen spouse and been living in the country for 30 years aren’t going to be worried about whether they will be able to remain in the country. They know that at this point, they are protected from being deported following a divorce.

However, people who have been married for just a couple of years may be a bit more concerned. The length of marriage plays a large role, but so does the type of visa under which the foreign national is staying in the United States and their other interests within the country.

Adjustment of Status

When a marriage doesn’t make it past the 90-day mark, the biggest determiner on whether a foreign national will be able to remain in the country after filing for divorce is whether they have filed Form I-485 (Adjustment of Status). If you have not yet filed this form, then you will, in all likelihood, lose your right to remain in the country past the 90-day mark and be forced to leave.

However, if you already filed your I-485, had your interview, and received approval, you will likely receive your valid conditional two-year green card. Now, if you are unable to establish another valid reason for extending your stay in the country beyond the expiration of your two-year conditional green card, you will need to leave the country once the two years have passed.

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If you are looking for permanent residency, there are a few valid reasons for your residency to be extended beyond this conditional green card, such as remarrying or establishing a business in the country.

Divorcing While Staying on a Two-Year Conditional Green Card

This is the period where most foreign nationals looking to divorce their sponsoring spouse are worried about losing their right to remain in the country. Fortunately, there is still a very good chance that someone divorcing during this stage will be able to stay in the country following the dissolution of their marriage. To do so, the foreign national filing for divorce must submit a waiver along with form I-751 (Petition to Remove Conditions on Residence).

There are four valid reasons for a foreign national to submit a waiver, and at least one of the conditions must be met, in order to get approval for Form I-751. The valid conditions for submitting a waiver are:

  • Proof that your marriage was legitimate and not just for residency purposes
  • Having children with your spouse
  • Proof of hardship you will endure if sent back to your home country
  • Proof of abuse by your partner

Even if you are not looking to remain in the country following your divorce, you must still submit for I-751 if divorce proceedings will last beyond the two years granted by your conditional green card. In this case, you will receive an extension of your conditional status, which will be valid until your divorce is finalized.

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After Receiving Your 10-Year Permanent Resident Green Card

Once you have received your 10-year permanent resident green card, there is no difference between your divorce and the divorce of two citizens. You are safe to remain in the country as long as you want at this point, as long as you file to have your green card renewed every ten years or apply for citizenship.

Divorce Is Always Complicated

Even when you feel confident that you are going to remain in the country, divorce is still a complicated and often messy procedure. The process involved in getting a divorce in California can last for years in a contentious divorce. When getting divorced, make sure you carefully select a divorce attorney with whom you feel comfortable.

Being selective in who you hire is especially important when your right to stay in the country is on the line, as well as your general interests within your divorce.

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