Divorce Prior to Permanent Residence being Conferred

There are two ways an alien can obtain permanent resident status through their spouse. One way is by qualifying as the direct beneficiary of an immigration petition made by a sponsoring U.S. permanent resident or citizen spouse. The other way is by qualifying for permanent resident status through a petition where the alien's spouse is permitted to include the alien on his/her immigration petition as a derivative beneficiary. In both instances, the alien is a beneficiary of an immigration petition on the basis of marriage. Generally speaking, if the marriage is terminated by divorce before permanent resident status is granted (i.e., before adjustment of status is granted, for those aliens who applied for adjustment), the beneficiary or derivative beneficiary will not be eligible for permanent resident status through this relationship.

Other aliens besides the beneficiary spouse may also depend on a marital relationship to obtain their permanent resident status. Children of aliens who are married to a U.S. permanent resident or citizen may obtain permanent resident status through their “step–relationship” with their alien parent's spouse. They may likewise be included as derivative beneficiaries of a step-parent’s immigration petition. As in the case with their alien parent, if the marriage terminates before permanent resident status is granted the beneficiary or derivative beneficiary child will not be eligible for permanent resident status through this relationship.

(Updated 10/4/2012 by AG)

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