If an immigration application based on marriage is pending before the USCIS, an immigrant spouse will be considered out-of-status upon the dissolution of the marriage. Alternatively, if the applicant marriage terminates in divorce, the immigrant spouse applicant will lose his/her immigrant status and become deportable.
US Loss of Marital Union Due to Divorce or Annulment Attorney
A person’s marital status may be terminated by a judicial divorce or by an annulment. A divorce or annulment breaks the marital relationship. The applicant is no longer the spouse of a U.S. citizen if the marriage is terminated by a divorce or annulment. Accordingly, such an applicant is ineligible to naturalize as the spouse of a U.S. citizen if the divorce or annulment occurs before or after the naturalization application is filed.
The result of annulment is to declare a marriage null and void from its inception. An annulment is usually retroactive, meaning that the marriage is considered to be invalid from the beginning. A court's jurisdiction to grant an annulment is set forth in the various divorce statutes and generally requires residence or domicile of the parties in that jurisdiction. When a marriage has been annulled, it is documented by a court order or decree.
In contrast, the effect of a judicial divorce is to terminate the status as of the date on which the court entered the final decree of divorce. When a marriage is terminated by divorce, the termination is entered by the court with jurisdiction and is documented by a copy of the final divorce decree. USCIS determines the validity of a divorce by examining whether the state or country which granted the divorce properly assumed jurisdiction over the divorce proceeding. USCIS also determines whether the parties followed the proper legal formalities required by the state or country in which the divorce was obtained to determine if the divorce is legally binding. In all cases, the divorce must be final.
An applicant’s ineligibility for naturalization as the spouse of a U.S. citizen due to the death of the citizen spouse or to divorce is not cured by the subsequent marriage to another U.S. citizen.
Expatriation of U.S. Citizen Spouse
An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen has expatriated any time prior to the applicant taking the Oath of Allegiance for naturalization.
US Failure to be Living in Marital Union due to Separation Attorney
A legal separation is a formal process by which the rights of a married couple are altered by a judicial decree but without eliminating the marital relationship. In most cases, after a legal separation, the applicant will no longer be actually residing with his or her U.S. citizen spouse, and therefore will not be living in marital union with the U.S. citizen spouse.
However, if the applicant and the U.S. citizen spouse continue to reside in the same household, the marital relationship has been altered to such an extent by the legal separation that they will not be living together in marital union.
Accordingly, an applicant is not living in marital union with a U.S. citizen spouse during any period in which the spouses are legally separated. An applicant who is legally separated from his or her spouse during the time period in which he or she must be living in marital union is ineligible to naturalize as the spouse of a U.S. citizen.
In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. An applicant who is no longer actually residing with his or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse.
However, if the U.S. citizen spouse and the applicant continue to reside in the same household, an officer must determine on a case-by-case basis whether an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. citizen. Under these circumstances, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are informally separated if such separation suggests the possibility of marital disunity.
Factors to consider in making this determination may include:
- The length of separation;
- Whether the applicant and his or her spouse continue to support each other and their children (if any) during the separation;
- Whether the spouses intend to separate permanently; and
- Whether either spouse becomes involved in a relationship with others during the separation.
Under very limited circumstances and where there is no indication of marital disunity, an applicant may be able to establish that he or she is living in marital union with his or her U.S. citizen spouse even though the applicant does not actually reside with citizen spouse. An applicant is not made ineligible for naturalization for not living in marital union if the separation is due to circumstances beyond his or her control, such as:
- Service in the U.S. armed forces; or
- Required travel or relocation for employment.
USCIS does not consider incarceration during the time of required living in marital union to be an involuntary separation.
If a divorce or separation cannot be avoided, contact a US Immigration Divorce law attorney to help you navigate complex immigration divorce legal options that might offer post-divorce legal residency or result in a potential post-divorce deportation suspended or cancelled.
Regardless of your individual circumstances, working with an experienced US Immigration Divorce Law Attorney is an important choice you can make to help prove your citizenship status. Call 855 461 0009 to speak with a US Immigration Divorce Law attorney today for a Free Immigration Divorce law consultation.