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.

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.

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.

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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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