Does Who Files for Divorce Matter

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Will Immigration hold it against me if I’m the one who files for divorce? Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States at our office here in St. Louis, Missouri.

So, we have a lot of consults with people in various stages of marriage. We have very happy consults where people are about to get married, they’re engaged, they’re talking about, “Well, Jim, should we do a fiance visa? Should we do a spouse visa?” Then at the other end of the spectrum, we’ve had situations where a couple is fighting, in fact, couples that we’ve represented. We’ve twice had a situation where both the husband and wife call and one of them wants to know, “How do I stay in the United States?” and the other one wants to know, “How do I deport my spouse from the United States?” And of course, we never help with anyone trying to deport someone.

And also, of course, if we’ve represented both a husband and a wife or two spouses in a situation and they become adverse to each other, they start fighting, we can’t pick a side. We can’t help one over the other. We have a conflict at that point and we have to refer those people out.

But in this video, what I want to talk about is this idea of divorce. And so, a lot of people come to us and they’re thinking about divorce or they’re thinking about, what are their options? Because, when you get that original green card, it’s only good for two years and at the end of those two years you have to show that it was a valid marriage, again, that it’s still ongoing.

Generally, that’s done by the couple filing together, but sometimes in a divorce situation, the non-citizen has to file the i-751 petition to remove their conditions on their own. And people have a lot of, I would say, strange ideas about how USCIS interprets a divorce. Specifically what I’m talking about are situations where they want to know, “Should I file for divorce? Should I let my spouse file for divorce? I’m the foreign national. Does it look bad upon me if I’m the one who files for divorce?” And so, I thought we’d make this video to talk it through.

So, I don’t think USCIS spends that much time looking at exactly who filed for divorce. To me, I think it’s more important the act of divorce itself. In other words, I don’t think you need to get caught up on, “Do I file for divorce or do I wait for my US citizen spouse to file for divorce?” I don’t think it really matters. It may in certain circumstances, and of course timing is often an issue. So, USCIS will look at the timeline of the marriage and when the conditional green card was received. Then they might dig a little bit into the facts of the divorce: who filed first and why did they file? Sometimes they do that, but it’s very rare, actually.

The reason I bring this up is because I did a consult the other day and the potential client was wondering, “Is it going to look bad? Am I going to get punished for filing for divorce?” This person was in a very volatile and unsafe situation and I said, “Look, brother, it’s much more important that you’re safe, that you get your life together.

And in fact, if you want to file this i-751 on your own, you can’t do it unless and until you’re divorced. So, if you’re just sitting around waiting for your spouse to file for divorce, that’s really going to hurt your chances of staying in the United States because you have to get that divorce finalized before that two year anniversary.” And so, I think I put his mind at ease and let him at least open up to the possibility of filing for divorce, so that it didn’t just become him waiting, and waiting, and waiting. I think he had much more to lose by waiting to file for divorce than any kind of concern that he might have that USCIS would punish him for filing for divorce.

So, I think that it’s complicated, and it depends on the facts of each case, and you probably need to talk to a lawyer about the specific circumstances of your case. But I don’t want you to get hung up on and/or stay in an unsafe situation or put yourself in a position where it’s going to be hard to file an I-751 petition on time that you just throw up your hands and don’t do anything.

So, as with so many of our videos, I’m trying to empower you. I’m trying to educate you. I’m trying to help you make the best decision possible.

So, hopefully you’re not going through divorce. Hopefully you’re not having to file an i-751 all by yourself. But if you are, give us a call at (314) 961-8200. You can email us at info@hackinglawpractice.com. Be sure to join us in our Facebook group, which is called Immigrant Home. And if you liked this video, we ask that you subscribe to our YouTube channel so that you get updated whenever we make videos just like this one. Thanks a lot. Have a great day.

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