Can a Wife Be Deported if She Filed for Divorce?

By Heather Frances J.D.

Non-citizens can get a quick path to United States citizenship by marrying a U.S. citizen, but those marriages don't always work out. Whether it's because the marriage began as a sham or developed problems along the way, divorces can have citizenship implications. Depending on how long the spouses were married and what type of residence the non-citizen spouse has, she could face deportation upon divorce.

Non-citizens can get a quick path to United States citizenship by marrying a U.S. citizen, but those marriages don't always work out. Whether it's because the marriage began as a sham or developed problems along the way, divorces can have citizenship implications. Depending on how long the spouses were married and what type of residence the non-citizen spouse has, she could face deportation upon divorce.

Conditional Permanent Residence

An alien spouse gets conditional permanent residence based on her marriage to an American citizen. This residency status is conditional for two years, so marriages that terminate before two years can cause a problem for the non-citizen spouse's immigration status. Generally, if the marriage ends while the alien spouse is still a conditional permanent resident, divorce terminates that conditional residency. Without this special residency status, the alien spouse could be eligible for deportation since she no longer has a legal-residence status.

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Full Permanent Residence

Once the non-citizen spouse passes the two-year conditional residency period, her citizen spouse can petition for her to obtain unconditional, full permanent residence. Divorce typically does not affect the non-citizen spouse's status once she obtains permanent residency, meaning she is not eligible for deportation due to the divorce. Divorce can, however, delay the alien spouse's citizenship process because aliens married to citizens only need three years of residency to obtain citizenship rather than the five years required for aliens not married to U.S. citizens.

Waiver of Termination

An alien spouse who is divorced while in a conditional permanent residence status can stay in the United States legally by obtaining a waiver of termination of his status. A waiver is given to non-citizen spouse if he entered into a marriage in good faith and was not at fault for failing to file for permanent residency when he became eligible for it. Thus, a spouse whose marriage was a sham from the start will not qualify for a waiver of termination, but a spouse whose marriage was legitimate can qualify even though the marriage did not work out.

Divorcing a Deported Spouse

If a non-citizen spouse is deported, it can be difficult for the citizen spouse to finish the divorce process. However, even if the citizen spouse does not know where his deported wife is living, he can get the divorce. State laws determine how spouses are served with divorce paperwork -- and these service laws generally provide alternatives for personal service when one spouse cannot find the other. Thus, if the citizen spouse cannot locate the deported non-citizen spouse, he may still be able to serve her by publishing notice in the newspaper or other authorized means.

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Can Divorce From a Sponsor Affect Citizenship?

References

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Can You Marry an Illegal Immigrant Before Divorce?

For most divorcing couples, terminating a marriage isn't as simple as merely signing legal paperwork and permanently parting ways. Depending on the assets you and your spouse accrued during your marriage and other factors, such as whether or not you can agree on child custody arrangements, your divorce could take months to settle. For those who wish to remarry, this waiting period can be particularly stressful, but you must end one marriage before you can marry someone else. Because an individual's immigration status does not dictate whether or not she can enter into a valid marriage, marrying an illegal immigrant is no more an option prior to divorce than marrying a U.S. citizen.

Divorce to an Immigrant That Has Been Deported

Deportation of an immigrant spouse disrupts the marital relationship. Unless the remaining spouse leaves the country to join the deported spouse, she has few options: She can wait for years to determine if the deported spouse might be allowed to return to the United States, or file for divorce. Divorcing an immigrant who has been deported is likely to require special steps to establish court jurisdiction and to create a legally effective notice of the divorce filing.

Tennessee's Laws on a Divorce From a Deported Spouse

The Tennessee Code provides several alternatives for a Tennessee resident divorcing his or her deported spouse, but the state does not have a specific statute regarding divorcing a deportee. Various grounds may be used for such a divorce, including spousal desertion, abandonment, failure to live together, and any criminal conviction that may have caused the deportation. Tennessee law also provides for no-fault divorce.

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