The Effect of Divorce on the Legal Status of Some Alien Non-Immigrants

There are classes of alien non-immigrants who obtained their legal status in the U.S. based on marriage to another alien non-immigrant. For example, the spouse of an H-1B specialty worker may obtain a non-immigrant status called H-4 solely based on the legal status of the H-1B spouse. The marriage of the alien to the non-immigrant is a requirement for the alien’s non-immigrant status in these instances. In addition, in some instances, unmarried, minor children of the alien may obtain legal status in the U.S. based on the marriage of the alien parent to the non-immigrant.

The most common examples of this kind of status are H-4 (as mentioned above), F-2, and J-2. In essence, these represent the legal status for the dependents of H-1B, F-1, and J-1 holders, respectively. If marriage was terminated, the holder of the dependent legal status would be out of status immediately, as the relationship granting that status would be terminated. Therefore, a derivative (H-4, F-2, J-2) alien non-immigrant would have to seek an alternative legal status to legally remain in the U.S. before the divorce takes place.

(Updated 10/4/2012 by AG)

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