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Separation or Divorce during the Residency Process

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Separation or Divorce during the Residency Process

Marrying a U.S. citizen is a way to seek residency because the spouse of a citizen has a visa number available, so he/she can adjust status in the U.S. without waiting time.

For such adjustment the marriage with the citizen must be valid, initiated in good faith and continue until the time of the award of the Residency. The spouses must submit documentation evidencing this.

Immigration examines whether the intention of the spouses was to establish a life together at the beginning of the marriage. Documents that establish this objective are: proof of common domicile, joint bank accounts, property in both names, Tax Returns filed as married, health or auto insurance in both names, and children born of the marriage.

Depending on your circumstances, some couples may not be able to produce all of these documents, so it is recommended that you consult with your attorney about other ways to prove the couple’s bona fides and intent to live together.

I can’t stand you anymore!

A separation before the date of the adjustment interview does not automatically nullify the residency process, but it can be a serious problem when trying to prove the validity of the marriage.

If there is abundant documentation that reliably proves that the marriage was entered into with the intention of living together as husband and wife, it can be argued that the separation is a stage that the marriage is undergoing. In any case, both of you must be present at the interview and declare it. Having little documentation is complicated enough without compounding it with a separation.

If, in the judgment of Immigration, the spouses do not clearly prove the intent to live as a couple, the petition will be denied. A divorce during this stage does negate the possibility of adjustment.

Divorce after Residency

Residence obtained before two years of marriage will be conditional and an application to change to permanent residence must be filed within 90 days prior to the second anniversary of the conditional residence, under penalty of deportation. The request must be made by both spouses.

If the divorce occurs prior to filing this application, the conditional resident may request permission to file the application on his or her own.

¡Mucho Cuidado!

Cuídese de los notarios, consultores en inmigración o cualquier persona no calificada y preparada en estos temas. Siempre busque la asesoría y los servicios de un abogado de inmigración para sus procesos y trámites migratorios.