Children whose parents divorce face a unique set of obstacles. When immigration status is involved, the divorce can be even more difficult for the child.
For children whose permanent residency is dependent on their parent's marriage-based green card, divorce may cause the child to lose status.
A U.S. citizen may petition to bring their foreign-born spouse and any of their spouse's unmarried children under 21 [i].
If the child has a parent that is a permanent resident but was born in the United States, they do not need to worry about the divorce of a U.S. citizen and permanent resident parent disrupting their immigration status.
If You Already Have A Green Card
If the child's marriage-based green card has already been issued and is not conditional, and the marriage was not fraudulent, the child should be able to keep their green card even in the event of divorce.
If the couple was married for more than two years at the time the green card was issued, a divorce should not jeopardize immigration status based off the marriage because they will not have a conditional green card.
This is because once a beneficiary has received permanent residency that is not conditional, USCIS does not need to look into how they were originally eligible for the green card.
The beneficiary (parent or child) will not need to provide additional evidence to renew their green card or apply for naturalization.
If You Have a Conditional Green Card
The USCIS will put "conditions" on your marriage-based green card if you and your spouse have been married less than 2 years at the date of issuance.
After 2 years on the conditional green card, the couple may apply to remove those conditions -- but if the marriage has since been dissolved, the conditional green card may no longer be valid for the spouse or child.
The application to remove conditions has a joint-filing requirement which will not be met if the couple has divorced or annulled their marriage.
Divorce Waiver
For couples who have divorced before removing conditions from the conditional green card, their permanent resident status and their accompanying children' status may be preserved through filing a divorce waiver.
The waiver is for the joint-filing requirement of the I-751, meaning you do not need your U.S. citizen spouse to sign the petition [ii].
To be eligible for the waiver, you must prove to USCIS that the marriage was entered in good faith and not for immigration benefits, using additional proof other than the evidence you submitted originally during the interview process [iii].
If your divorce was the result of domestic violence, you may also qualify for a waiver separate from the divorce waiver.
Extreme Hardship Waiver
If a child on a conditional green card through marriage of one of their parents is ineligible for permanent residency due to divorce, they may be able to file for an extreme hardship waiver.
This waiver is applicable in instances beyond divorce. If the child is taken away from their parents due to abuse, or the marriage ended because of abuse, the child can use an extreme hardship waiver to retain their permanent residency.
Divorce Before Green Card Approval
The immigration process is lengthy and stressful--occasionally, marriages will deteriorate before permanent residency is granted.
If you and your U.S. citizen spouse have divorced while in process of applying for a marriage-based green card, you nor your children will be eligible for that green card. You are not eligible for a divorce waiver at this point in the process.
If you continue to feign a marriage for the purpose of obtaining a green card, you will be committing fraud and may face prosecution and fines as well as a bar on entering the United States under any visa type.
Example: Mary, from Bulgaria, and her 4 year old son apply for a green card based on Mary's marriage to Todd, a U.S. citizen. Mary and Todd have been married for one year when they apply for a marriage-based green card.
A few days before their consular interview, Todd files for divorce. Neither
Mary nor her son are eligible for a marriage-based green card at this point. If Mary and Todd choose to remain married solely for her and her child to become permanent residents, they will be guilty of immigration fraud.
What To Do If Divorce Interrupts Immigration Process
The most sensical thing to do is contact an immigration attorney. Since a divorce can take several years to become final, there are many ambiguities in the immigration process when dealing with a divorce before it is final.
If you and your spouse have discussed divorce, you should contact an immigration attorney before taking action to discuss your options and ensure you do not commit immigration fraud.
[i] See 8 C.F.R. §245.1(h)
[ii] See 8 C.F.R. §216.5(a)
[iii] See 8 C.F.R. §205.1
