Divorce With Pending I-485, Can You Adjust Status With A New Spouse?
We know that not all marriages survive until old age, and it’s no different when one person is an immigrant. One major difference is that it can affect your immigration status if you choose to divorce at the wrong time. A divorce in the middle of a pending I-485 can mean a lengthy delay, or worse, a denial.
I’m not saying that you have to stay married just for the benefit of a green card but if your marriage just didn’t work out, there are some really bad consequences. The bright side is that if you know how a divorce will affect your chances of getting a green card, you can better prepare for it.
If your marriage is on the rocks and you know that you’ll be filing for divorce, there are a few things you should do.
- Start gathering evidence .
- The evidence you’ll need consists of proof of bona fide marriage. You’ll need to show USCIS that you entered the marriage in good faith and no just for immigration benefits.
- Make sure you can support yourself.
- Get your finances in order so you can support yourself after the divorce. Save money while you are working or stash away your spending money so you have something when you need cash.
- Change your address with USCIS.
- It’s absolutely required that you notify USCIS when you move or change your mailing address. Another reason to update your address before you divorce is to avoid problems of your ex-spouse keeping your immigration documents.
- Make copies of important documents.
- Try to make copies of your marriage certificate, tax returns, bank statements, credit card statements, etc. This will help you to prove you had a real marriage and you won’t have access to this when you are divorced.
Will A Separation Affect The I-485 Green Card Application?
Being legally separated is not the same thing as being divorced. Separation doesn’t affect your green card application the same way a divorce does because you are still technically married.
Note that in some states, if you are separated for a period of time you will automatically be considered divorced. This will then affect your immigration status so make sure you know the laws in the state you live in when it comes to long term separation.
Shannon recently married Jason (a US citizen) and filed for I-485 Adjustment of Status but they quickly realized that their marriage wouldn’t work out. They decided to separate for a while to see if they could work on their marriage during this cooling off period. After several months, they still couldn’t work out their differences and Shannon began to worry about her I-485 application.
When they initially sent in the petition, they submitted their marriage certificate and evidence of a bona fide marriage. But, now that they are separated and will be filing for divorce, this changes her eligibility for the green card.
Some of you may be thinking: “how will USCIS know if we are separated or divorced after the I-485 is submitted?”
Well, there is this little issue called the green card interview. Yup, if you want to get your green card you’ll need to show up in person with your spouse to be questioned by immigration officials.
Don’t try to skip this interview either because if you or your spouse don’t show up, it’s an automatic denial.
Being Accused Of Immigration Fraud During A Divorce
Divorce is ugly. Many couples start off on good terms during the early stages of a divorce but then it quickly turns negative.
That’s when the U.S. spouse will accuse the immigrant of marriage fraud for a green card. Even if they were married for years and have a child together, this accusation is used a lot.
You don’t want to be accused of immigration fraud by your U.S. spouse because this will definitely cause a serious delay in your case. Not only that, but if your U.S. spouse submits evidence of marriage fraud to USCIS, they may just deny your green card application.
Henry and Sun got engaged last year in China and after she arrived in the U.S. on a K1 visa, they married at the courthouse. Sun put together her I-485 petition and submitted it to USCIS. After 3 months of waiting, Sun and Henry decide they are not compatible and talk to an divorce attorney.
Sun moves out of their shared home and begins to see someone she met at her church. They aren’t serious yet but Henry finds out and flies into a rage over her new relationship. He accuses her of marriage fraud to get to the U.S. for a green card and sends a letter to USCIS.
Jealously can make people do some horrible things. Even though Sun didn’t commit fraud, she was accused of it because her ex-husband wanted to hurt her in some way. This will cause her case to be looked at more closed by USCIS.
Can I Marry A New US Citizen To Sponsor Me?
Some immigrants think that USCIS will accept any U.S. citizen as the petitioner or sponsor. Guess what? This is not true at all.
The reason they won’t accept a different U.S. citizen is because of the risk of immigration fraud. The main purpose of family-based immigrant visas is to reunite you with your family. If you have no family, then you don’t qualify for the family-based visa programs.
If you quickly move on after a divorce to a new U.S. lover, then it looks like you will be with anyone who can sponsor your for a green card. You can’t just replace your ex-spouse on the I-485 petition.
You must attend the interview for the green card with the spouse that originally petitioned for you. If you divorce before the I-485 is approved, you’ll need prove that you married in good faith and you have shot at getting the green card.
Unfortunately, many people get denied because they skip the interview thinking that USCIS won’t find out about the divorce.
If you truly did meet someone else who is willing to petition for you, you’ll need to leave the U.S. and apply for the K1 fiance visa or the CR1 spouse visa.
What Happens When Petitioner Withdraws I-864?
Many U.S. citizens are not aware that they can still withdraw the I-864 affidavit of support before the green card is approved. In most cases, USCIS will not approve the I-485 without an interview but in some cases it does happen.
But if the U.S. citizen withdraws the I-864, it will automatically cancel the I-485 petition. Why? Because to be eligible for a green card, you need to show that you will not become a public charge.
Here’s the tricky part: even if you find another sponsor, you still need the original petitioner to submit their own I-864. There’s no getting around this requirement no matter what. As you can see, your case is in limbo until you have the green card in hand.
Bilal met and married Sarah while they were in college. Bilal came to the U.S. on an F1 visa and Sarah helped him adjust his status after they got married in Vegas. They filed I-485 adjustment of status but soon after they realized that they made a mistake. They were too young and didn’t know each other well enough to get married.
Sarah wants a divorce and Bilal tries to change her mind. She gets upset that Bilal isn’t listening to her and she contacts USCIS to withdraw the I-864 canceling her financial support for him.
In the case above, Sarah withdraws the affidavit of support which will result in the cancellation of Bilal’s I-485 green card application. There isn’t anything he can do about it and he won’t be able to just find another sponsor for the I-864.
Final Thoughts On Pending I-485 And Divorce
Hopefully, I didn’t scare you too much about divorce with a pending I-485. There are many immigrants that get caught in this trap and lose their immigration status due to a divorce. It’s important to understand your rights under immigration law to better protect yourself.
I know there will be some readers that will decide to stay married for the sake of getting a green card, but I’d suggest you not to do that. Not only will it not be right for you but it will look like you got married just for immigration benefits.
If, however, you truly believe you can work things out with your spouse, it’s best to stay together to fix the relationship. This will not only given your relationship a chance to reconcile but it won’t complicate your immigration application.
The reason USCIS gives new immigration a temporary conditional green card is due to marriage fraud. They will put you on a probationary period to see if you truly married for love or for a green card.
Ultimately, whether your marriage ends or not is up to you but you should know how it will affect your immigration status. I always recommend trying to work things out unless it’s impossible or the relationship is too far gone. Especially if children are involved it’s worth it to try one more time to reconcile.