Foreign nationals who come to the U.S. with nonimmigrant (temporary) visas such as H-1B, F-1, L-1, or O-1 are eligible to bring their spouses to the U.S. with them by applying for dependent visas. For example, the dependent visa for the H-1B is the H-4 and the dependent visa for the F-1 is the F-2, etc. In most cases, the dependent visa is obtained at either the U.S. consulate or by filing the Form I-539 Application with U.S. Citizenship and Immigration Services (USCIS). Dependent visas are typically very simple and quick to obtain as long as the couple can prove that they are lawfully married.
Additionally, U.S. citizens and lawful permanent residents (green card holders) can sponsor their spouses for immigration benefits, including green cards. Importantly, in many cases same-sex spouses qualify for these benefits.
In order to sponsor a foreign spouse, the U.S. citizen or green card holder must file the Form I-130 Petition with USCIS. Family-based petitions for spouses are more complicated than temporary visa petitions. The Form I-130 Petition must be accompanied by many different types of supporting documents that show the couple’s marriage is bona fide, such as pictures of the couple’s wedding ceremony, birth certificates of any children born to the marriage, evidence of the co-mingling of assets, proof that the couple live together in a marital home, etc.
If the spouse receives the green card before the marriage is two years old, the spouse will likely be issued a temporary green card that is valid for two years. After the expiration of the two-year conditional period, the spouse will need to file a Form I-751 with USCIS in order to receive the permanent green card.
Unfortunately, sometimes marriages do not work out and the spouses decide to obtain a divorce. If foreign nationals with temporary visas obtain a divorce, the spouse will no longer qualify for the dependent visa and will be required to either leave the U.S. or change status to a different temporary visa.
If couples where one spouse sponsors the other for a green card decide to obtain a divorce, the foreign spouse may lose the green card as a result of the divorce. However, if the foreign spouse can prove that the couple’s marriage was bona fide (meaning that they did not get married solely for immigration purposes) then the spouse may be able to keep his/her green card notwithstanding the divorce.
Additionally, if a U.S. citizen obtained his/her citizenship through marriage, then obtains a divorce, then remarries a foreign national, the U.S. citizen may encounter difficulty in sponsoring the new spouse for a green card. These types of cases are not impossible but do require some special handling and careful preparation in order to maximize the possibility for success.
At the Callan Law Firm, P.C., our attorneys are highly experienced in filing family-based immigration petitions and we also help our clients cope with their divorces from an immigration perspective. Contact our office today to speak to a knowledgeable attorney about your case. We look forward to working with you!