Frequently Asked Questions on Divorce

Q: Does separation from my spouse cut off my immigration benefits that are based on my marriage to my spouse?
A: Generally not. For the most part, physical or legal separation (i.e., a separation formalized by a court) of married parties does not constitute a legal termination of a marriage.
Q: If my non-immigrant status is based on my marriage to another non-immigrant, would my non-immigrant status be affected if I were to get a divorce?
A: Yes. As your status is based on your marriage to another non-immigrant, once the relationship ends, your status ends.
Q: I am in H-4 status, which I obtained based on my marriage to my husband who is in H-1B status. We are separated, but our divorce will not be finalized until next month. Am I still in H-4 status?
A: Yes. For the most part, physical or legal separation (i.e., a separation formalized by a court) of married parties does not constitute legal termination of a marriage.
Q: After the divorce is finalized, will I still be in H-4 status?
A: No. H-4 is a status for the dependants of H-1B holders. For this purpose, dependants are either the spouse or children of the H-1B non-immigrant. If the relationship ends, the status ends.
Q: In the above example, what should I do to maintain a legal status in the U.S.?
A: You need to apply for another non-immigrant status before the divorce is finalized.
Q: I was admitted to the U.S. as a J-2. My husband and I are not on speaking terms and we do not plan to live together as husband and wife ever again. However, we are too lazy to go through the trouble of obtaining a legal divorce. Am I still in valid J-2 status?
A: Yes. For the most part, physical or legal separation (i.e., a separation formalized by a court) of married parties does not constitute legal termination of a marriage. This is the case even in circumstances where each party of the marriage has no intention of residing with the other again. However, in some instances, a legal separation may be considered a legal termination of a marriage for immigration law purposes. This occurs when the law of a state or country converts legal separations automatically into divorces after a period of time.
Q: In the above example, at what point will I no longer be in J-2 status?
A: If and when you actually get a legal divorce or are deemed legally divorced, or when your husband is no longer in J-1 status, or when you change your own status.
Q: I was admitted to the U.S. as an H-4. My husband and I reside in New York State. Three years ago, we obtained a legal separation pursuant to New York law. Am I still in valid H-4 status?
A: No. In New York, legal separations are automatically turned into divorces after two years. Legal separations that automatically turn into divorce constitute the termination of a marriage for immigration purposes.
Q: Same example as above, except we reside in Texas and obtained a legal separation pursuant to Texas law. Am I still in valid H-4 status?
A: Yes, because legal separations in Texas do not automatically turn into divorce.
Q: I was admitted to the U.S. as an H-4 based on my mother's marriage to an H-1B who is not my father. My mother and stepfather were recently divorced. Am I still in valid H-4 status?
A: No. Your H-4 was dependant on the relationship between your mother and stepfather. When that relationship terminated, your legal relationship with your stepfather terminated, and as a result, so did your H-4 status.
Q: Same example as above, except the H-1B holder is my biological father. Am I still in H-4 status?
A: Yes. Your H-4 is based on the relationship between you and your father. Your mother's divorce to your father does not affect your relationship with him, and therefore has no affect on your legal status in the U.S.
Q: My I-130 application was approved. The petitioner for the application was my spouse. I filed an I-485 application for adjustment of status. Do I have to remain married to my spouse until my I-485 is approved?
A: Yes. Generally speaking, in cases where a spouse is the petitioner in an I-130 application, if the marriage terminates by divorce before the adjustment of status is granted, the beneficiary will not be eligible for permanent resident status through this relationship.
Q: My ex-husband is a U.S. citizen and he was the petitioner for my I-130 and I-485 applications when we were married. We divorced before my I-485 adjustment of status application was granted. Am I still eligible for adjustment of status based on my prior marriage to my ex-husband?
A: No. Generally speaking, in cases where a spouse is the petitioner in an I-130 application, if the marriage terminates by divorce before the adjustment of status is granted, the beneficiary will not be eligible for permanent resident status through this relationship.
Q: Does a stepchild lose his immigration benefits obtained by the marriage of his alien parent to a stepparent who can confer an immigration benefit to the stepchild if the two divorce?
A: No. A stepchild may continue to be entitled to immigration benefits from such marriage, even though the relationship between the natural parent and the stepparent has been terminated by divorce or death of the natural parent if the family relationship continues to exist as a matter of fact between the stepparent and stepchild.
Q: My mother married a U.S. citizen. They are now divorced. My ex stepfather was the petitioner of my I-130 and I-485 applications. The divorce took place before my I-485 was approved. Am I still eligible for adjustment of status based my prior relationship to my ex-stepfather?
A: No. Your legal relationship to your ex stepfather was dependant on his legal relationship to your mother. Once that relationship was terminated, your relationship with him terminated. As your relationship with the petitioner ended before the adjustment was approved, you are no longer eligible for adjustment of status based on this relationship.
Q: My ex-husband applied for permanent residence through the employment-based category of Alien of Extraordinary Ability and was approved. When we were married, he filed an I-485 application as a direct beneficiary and I filed an I-485 application as a derivative beneficiary. We divorced before the I-485 was approved. Am I still eligible for adjustment of status to permanent residence based on my prior marriage to my ex-husband?
A: No. If a derivative beneficiary is relying on marriage to the principle beneficiary to obtain a Green Card, that marriage must remain intact until adjustment of status is granted.
Q: My mother married an alien who applied for permanent residence through the employment-based category of Outstanding Researcher. His petition was approved. When my stepfather married my mother, he filed an I-485 application as a direct beneficiary, and I filed an I-485 application as a derivative beneficiary. He and my mother divorced before my I-485 application was approved. Am I still eligible for adjustment of status to permanent residence based on my prior relationship to my ex-stepfather?
A: No. You qualified as a derivative beneficiary based on your mother's relationship to your stepfather. As that relationship terminated, your relationship to your stepfather legally terminated. To qualify for permanent residence based on your relationship to your ex-stepfather, his marriage to your mother had to remain intact until after the adjustment of status application was approved.
Q: I was married to a U.S. citizen for three years. One year ago, my husband died. We were not separated and were living together at the time of his death. I have not remarried. May I file an immediate relative immigration petition based on my marriage to my deceased U.S. citizen husband?
A: Yes. You may self petition for an immediate relative immigration petition based on a marriage to a deceased U.S. citizen if:
1. You were married to the deceased U.S. citizen for at least two years;
2. You and your deceased spouse were not legally separated at the time of his death;
3. You file the immigrant petition within two years from the date of the death; and
4. You did not remarry.
Q: I am a battered spouse of a U.S. citizen. May I file an immigration petition on my own behalf?
A: Yes. To qualify, the alien spouse must:
1. Be a person of good moral character;
2. Have entered the marriage in good faith;
3. Have resided in the U.S. with the citizen spouse;
4. Have been battered or subjected to extreme cruelty by the citizen spouse.
Q: I am a battered child of a U.S. citizen. May I file an immigration petition on my own behalf?
A: Yes. The same benefits and rules apply as in the case of a battered spouse.
Q: Does my divorce affect my status as a conditional permanent resident?
A: Yes. The general rule is that divorce terminates a conditional permanent residence. Nevertheless, in this scenario, it is possible for the alien to obtain a waiver of the termination. A waiver of the termination is granted to the alien if the alien can show that the marriage was a union in good faith and the alien was not at fault for his failure to file the joint petition to remove the condition. Generally speaking, if the conditional permanent resident can show that the marriage was entered into in good faith, it is presumed that he was not at fault for failing to file a joint petition.
Q: I was granted conditional permanent residence based on my marriage to a U.S. citizen. Before I could apply to have the condition removed, my ex-husband and I divorced. Does this affect my status as a conditional permanent resident?
A: Yes. The general rule is that divorce terminates a conditional permanent residence. Nevertheless, in this scenario, it is possible for the alien to obtain a waiver of the termination. A waiver of the termination is granted to the alien if the alien can show that the marriage was a union in good faith and the alien was not at fault for his failure to file the joint petition to remove the condition. Generally speaking, if the conditional permanent resident can show that the marriage was entered into in good faith, it is presumed that he was not at fault for failing to file a joint petition.
Q: My mother married a U.S. permanent resident. She was granted conditional permanent residence. Like my mother, I was granted conditional permanent residence. Before I could apply to have the condition removed, my mother and ex-stepfather divorced. Does this affect my status as a conditional permanent resident?
A: Yes. Your conditional permanent residence was based on your relationship to your stepfather. That relationship was based on your mother's marriage to your stepfather. Once that relationship terminated, your legal relationship with your stepfather terminated. The same rules apply in this scenario as in the scenario of the previous question.
Q: Can divorce adversely affect an alien's status as an unconditional permanent resident?
A: No. Divorce does not adversely affect an alien's immigration status after the alien obtains permanent residence unconditionally.
Q: I obtained permanent residence unconditionally based on my marriage to a U.S. permanent resident. My ex-husband and I recently divorced. Does this affect my status as a permanent resident?
A: No. Divorce does not adversely affect an alien's immigration status after the alien obtains permanent residence unconditionally.
Q: I obtained permanent residence two and one-half years ago based on my marriage to a U.S. citizen. I recently divorced my ex-husband. Does this affect my eligibility for U.S. Citizenship?
A: Yes. Now you must wait five years instead of three years after permanent residence was granted before you can apply for citizenship.

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