December 2, 2023

Immigration Marriage

Feel Good With Immigration

Spouse Visas and What Happens After a Divorce

When someone gets married, they do so under the belief that they will spend the rest of their life together. Many will cross countries to be with the person that they love, using a K1 visa to stay together. Whether their partner is a born citizen there or an H2B visa holder, the K1 visa is the only thing that legally allows them to stay together.

But what happens when you no longer get along with your spouse and decide it is time for a divorce? Can you still stay in the country, or do you have to leave? How will your status be affected by this? Well, it depends on various factors.

Can You Still Remain in the United States after a Divorce? 

If you are on a spouse visa, it may not be possible for you to remain in the United States, especially if you had a short marriage. If the marriage dissolved within two years, you become disqualified as a dependent, and will therefore lose your status. 

The only way for you to remain in the United States is to opt for an adjustment of status. For example, you may go for an H1B visa after your K1 visa expires. With that in mind, K1 visas need to hold for at least two years before you opt for an adjustment of status. 

Dissolving the marriage before that deadline may raise questions that the partnership was not truly genuine. Marriage fraud is more common than we would think, and many immigrants decide to marry solely for a visa. In certain cases, the “couple” decides they cannot get along, in which case they file for a divorce. 

Waiver for Marriage Termination

If the marriage is genuine and lasts for more than two years, the conditional resident will obtain a marriage green card. If the marriage ends after two years have passed, the couple may file a joint petition using form I-751, known as “Petition to Remove Conditions of Residence. 

Once the divorce has been finalized, the couple will have 90 days to file this petition. If the marriage was considered lawful and USCIS accepts the petition, the green card holder will be seen as a lawful permanent resident and will be given a 10-year green card. 

Ideally, you should file the documents as soon as possible. Spousal immigration cases can take a long time to resolve, mainly caused by delays and demand. This can turn out to be fairly problematic for the holder of the K1 visa.

Proof of Good Faith in Marriage

When a marriage ends, no matter if it was by divorce or death, the K1 visa holder needs to prove that the marriage was in good faith. This applies even in cases where there was abuse in the marriage. After divorce, both spouses must show that the marriage was started in good faith. 

This is a necessary protocol to confirm the couple is married for love, not for the sake of the visa. They need to show that they tried to build a life together, on honest grounds. This can include birth certificates for potential children, joint bank accounts, or records from the wedding.

During the immigration process, USCIS will not investigate how you live your life in private. As a result, Form I-751 will serve as proof that the marriage was indeed lawful and that the K1 visa holder deserves to remain in the U.S. under a different status.

A burden of proof will also be needed if the spouses are not filing jointly. A waiver can be provided if the visa holder can prove abuse. Similarly, if the removal from the US can cause extreme hardships to the visa holder, an extension to the visa may be offered.

Differences between Separation and Divorce

To protect your status as an immigrant in the United States, you may want to know the difference between separation and divorce. A divorce is when you are completely and legally separated from your spouse, no longer being connected by the laws of marriage. Separation is when you remain married, but live separately from your spouse.

In California, most visa-dependent divorces will require you to go through separation first. This will show that the marriage was done in good faith and that you tried to reconcile. Davis family law attorneys will often recommend this route when the marriage crumbles before the two years.

The Bottom Line

For the most part, if the marriage was in good faith and lasted for at least two years, your right to remain in the U.S. may not be compromised. That being said, you still need to change your visa status to maintain your ground. A good immigration attorney can advise you about the most beneficial route.