It is not uncommon for the American partner in the marriage to sponsor the immigration application of the non-citizen spouse. This might cause difficulties when working through the divorce process. Finding yourself in these circumstances means that you need to work with an experienced family law attorney in addition to an immigration attorney.
Status of Residency:
When a non-resident gets married to an American citizen, the non-resident is usually given conditional permanent residency status. In effect, the non-resident spouse is given a two-year conditional residency.
If the couple is married for 24 months and still desire to remain married, they can petition the US Immigration and Naturalization Services in an effort that the foreign spouse will be given full American citizenship.
If the couple is married less than two years, then the foreign spouse may only be granted the conditional permanent residence status.
In the case of divorce between a US citizen and non-citizen spouse before the conditional residency expires at the end of two years, the foreign spouse will have to apply for a waiver of termination.
The waiver will need to document that the marriage was performed in good faith and not just for the reason of obtaining a US citizenship. The foreign spouse can apply for a termination waiver on the grounds that their American spouse abused them or that undue hardships would occur if deported. The waiver needs to be signed by both parties. This can be difficult when in the middle of a divorce.
If the foreign spouse is not able to get the signature of the American spouse, they can still apply for a waiver but must be able to show that the marriage was entered into in good faith. While good faith efforts can be hard to prove and may leave the foreign spouse continuing under conditional residency status, there is still a small mountain of paperwork to be done.
If the foreign spouse has left the country and is no longer in the US, the American spouse can still obtain a divorce. The process is the same as divorcing a US resident, but the guidelines about serving your spouse with the divorce notice are different. There are four steps:
1. US Department of State website and review the rules for process serving in foreign countries. The rules of each country are different depending on the country’s treaty status with the US. Normally, for service to be valid in a US court, it must be valid in the country in which your spouse lives. Different countries have different guidelines and you may be able to perform service by mail or designated foreign agent.
2. Complete the divorce paperwork, making sure to include both parties name and address. Also specify when and where you were married, your grounds for relief and a request to the court to grant remedies which will normally be written in the final paragraph of the petition.
3. File the petition with the clerk of the court in the county in which you live. Make sure to get a time/date stamped copy for your records.
4. Serve your spouse according to the rules for service in your state and in the foreign country in question. After this, the remainder of the divorce is the same process as if you were divorcing a US resident. The time frame may be longer. If your spouse does not appear in court, the judge could grant you a default judgment of divorce.
5. Consult an attorney experienced in international law as early in the divorce process as possible. You can choose a big law firm like White & Case or stick to a smaller boutique firm like Bukh Global.