Can a Divorce Affect Your Immigration Status in Texas?

There are an estimated 4.3 million immigrants living in Texas, comprising 16.5% of the state’s total population. Many immigrants are married in Texas, which is many of them wonder, “Can a divorce affect your immigration status?”

Can an immigrant lose their right to remain in the U.S. if they get a divorce? Will U.S. Immigration and Customs Enforcement (ICE) deport an immigrant if they get divorced? We will answer these and many other questions.

However, you need to understand that each situation is unique, which is why it is advisable to discuss your particular case with a Florence divorce attorney. Divorce is, in and of itself, a stressful and confusing process. However, possible immigration issues may add even more stress if you are contemplating a divorce in Texas.

What Does a Divorce Mean for You if You’re a Conditional Resident?

Conditional residents who came to the United States on the basis of their spouse’s application can be affected by a divorce. Your immigration status is in jeopardy if you were admitted to the country within the past two years and your conditional resident status is based on marriage to:

• A U.S. citizen; or

• A lawful permanent resident.

According to the U.S. Citizenship and Immigration Services (USCIS), your permanent resident status is considered “conditional” if it is based on a marriage that was less than two years old on the day you became a permanent resident.

You can remove the conditions on your permanent resident status by filing Form I-751. The form must be completed and filed within 90 days before the expiration date of your green card. Generally, both spouses (the immigrant and the U.S. citizen or lawful permanent resident they are married to) have to file the form jointly.

However, if you are not longer together or got divorced, you still have a right to request the removal of your conditional status. In that case, you will need to file a Form I-751 along with a waiver to file individually without your spouse. However, when filing the form individually, you will be required to demonstrate evidence proving that:

1. the marriage was entered into in good faith; and

2. you and your former spouse lived together as a married couple.

You can prove that you entered into the marriage in good faith and intended to live as a married couple by showing the following:

• Bills and receipts for wedding-related expenses;

• Birth certificates of children born to the marriage

• Joint bank accounts

• Joint health insurance policies

• Joint ownership or occupancy of a home

• Photos and videos showing that you lived as a married couple

• Travel records showing that you traveled together as a married couple

Can a Divorce Affect My Immigration Status if I’m Not a Conditional Resident?

Generally, no. A divorce will not impact your immigration status if you are already a permanent resident (the conditional status was removed) or your green card is not based on marriage. For example, if you were granted a green card based on your employment, your immigration status will not be affected by your divorce.

If your visa was granted based on your spouse’s application, do not hesitate to speak with an attorney before filing for divorce. A divorce could potentially result in the loss of your ability to remain in the U.S. Contact our lawyers at The Law Office of Brett H. Pritchard to discuss your particular situation.

What Are Your Rights in a Divorce if You Are an Immigrant Spouse?

Many immigrant spouses mistakenly believe that they have fewer rights than citizen spouses when going through a divorce. However, immigrant spouses have the same rights as U.S. citizens. Specifically, immigrant spouses have a right to:

1. Their share of community property; and

2. Their children.

1. An Immigrant Spouse’s Right to Their Share of Community Property

Under Texas law, a spouse is entitled to their share of community property upon divorce. Community property is any property that the spouses acquire during the marriage. Assets that are subject to division in a community property state such as Texas include but are not limited to:

• The marital home

• Automobiles

• Retirement accounts

• Bank accounts

• Investment accounts

How community property is divided between the spouses depends on the circumstances of their divorce. While you and your spouse can reach an out-of-court agreement regarding the division of marital assets, your case can go to court where a judge will have to divide community property in a just and right manner.

2. An Immigrant Spouse’s Right to Their Children

Another fundamental right that an immigrant spouse has when going through a divorce is the right to their children. Contrary to popular belief, a citizen spouse is not presumed to be a better parent simply because of their immigration status.

Instead, Texas courts will examine the parents’ circumstances to determine the appropriate child custody (conservatorship) arrangement and possession schedule. A judge cannot take away your custody rights simply because you are an immigrant.

If you and your spouse cannot reach an agreement without court intervention, your child custody dispute will go to court. A judge will consider what custody arrangement would be in the child’s best interests when rendering a decision in your case.

It is advisable to seek the legal counsel of an experienced attorney to represent your rights and interests during a child custody case, especially if you are an immigrant spouse.

Speak with a Florence Divorce Attorney

If you are concerned about the potential impact of divorce on your immigration status, it is vital to consult with an attorney to discuss your case and options. The mere thought of getting deported or losing your right to remain in the country to care for your children can be scary and heartbreaking.