When relationships fall apart, it is difficult to cope with even in the best of the circumstances. The trauma and consequences are even bigger when the parties must consider what impact such an event will have on their respective immigration status. Whereas some families maintain a civil relationship after separation, others do not. Some relationships may involve physical or emotional abuse or threat about the foreign spouse’s green card status.

Some immigrants, especially those who immigrated through marriage, actually believe that they might be deported if they leave the relationship. Well, is it true? In this article, I will try to explore different scenarios, possible outcomes, and available legal recourse.

The outcomes may vary, depending on many factors, but especially on the parties’ immigration status and whether domestic violence occurred.

Permanent Residents who have an unconditional green card

Conditional Permanent Residents who have a green card that is valid for two years or less

There is a presumption that if the marriage does not survive two years and the couple fails to file a joint petition to remove the condition, then the marriage was not entered into in good faith and the presumption must be overcome by the conditional permanent resident.

Until recently, it did not really matter whether by the two-year anniversary the couple was still married or separated or divorced as long as the foreign spouse could prove that the marriage was real at entry or admission.

With a slight regulatory change, however, couples must now be legally divorced to use the good faith exception to waive the joint filing requirement and to file Form I-751 by him or herself. Disallowing couples who are validly separated or are in trouble from using this exception seems to be against public policy of trying to work out a failing relationship or promoting family values. Because of this illogical change, a waiver from the joint filing requirement is now harder to obtain. Unless the couple is already divorced, the foreign spouse, who is separated from or unable to get the support of the US citizen spouse, must go through the added burden of proving extreme hardship to file separately and without the cooperation of the estranged spouse.

It is not unknown that a US citizen spouse may try to use the foreign spouse’s precarious situation to his/her advantage in divorce negotiation or threaten that he or she will take away the green card from the conditional permanent resident spouse. As long as there was no fraud involved, the US citizen may not take away the foreign spouse’s immigrant status. If such a threat or abuse occurs, that provides a ground for a waiver from the I-751 joint filing.

Thus, if one’s relationship is in trouble before receiving one’s lawful permanent status without a condition, one should immediately seek out competent legal advice from an immigration attorney or a family law counsel who is well trained to deal with immigration matters. Nobody should suffer from threats and abuse simply out of the fear for one’s status.

In some unfortunate situations, domestic violence may occur before the victim has obtained even conditional permanent residency, let alone permanent residency. Some US citizen or permanent resident spouses intentionally do not file a petition for their spouse to keep him/her under control.

Victims of domestic violence, who are married to (or recently divorced from for reasons connected to domestic violence) US Citizens or permanent residents, and who are not permanent resident themselves, may be eligible to file an I-360 Special Immigrant Petition for victims of domestic violence. If you believe you may qualify under this, again, do contact a qualified immigration attorney or counsel who is trained to help such victims at once.

Special Advice for People in an Abusive Relationship

Making a decision to leave an abusive relationship can be very hard to do, and it is important that one has a safety plan in case of a threat whether or not an intending immigrant or conditional permanent resident.

The plan includes preparing a suitcase or box with extra clothing, medicines, money, and an extra set of car and house keys and keeping it at a friend’s house. Remember to take important papers, such as: driver's license or photo ID, social security number or green card/work permit, birth certificates, health insurance cards, property deed, any court papers or orders.

Some Phone Numbers to Keep Close at Hand

Social services; local safe house or shelter; one’s ethnic group’s community centers; National Organization for Victim Assistance (NOVA): 1 (800) TRY-NOVA (1-800-879-6682); National Coalition Against Domestic Violence: 1 (303) 839-1852.
The information contained in article is provided for general information only and should not serve as a substitute for legal advice.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.