Immigration Corner | What happens if my husband divorces me?

Dear Mrs Walker-Huntington,

If my husband filed for me and we are getting a divorce, will it affect my filing? If so, what is the best step to take seeing that he is leaving me because I live in Jamaica and he lives in America, and he has another female pregnant.

SB

Dear SB,

In the applications for a relative to migrate to America, spouses can petition for each other. However, it is the category with the most scrutiny because it is also the category with the most fraud.

When a husband/wife files a petition for their spouse, the couple must show that they are legally married and that their marriage is valid for immigration purposes. The second standard is often the most difficult to prove – this can be true even for people who have been together for a number of years.

The legal prong is demonstrated by a valid marriage certificate and divorce documents if applicable. Basically, both parties must show that they are legally married to each other and that if there was a previous marriage for either party, that marriage legally ended.

The ‘valid for immigration purposes’ prong is where the process becomes complicated. This requires that the couple has the intent to share a life together at the time of the marriage and that they demonstrate evidence of their on going relationship. The couple has to provide proof of visits, communications, shared assets and debts, and support if applicable.

If a couple enters into a marriage in good faith, but the marriage breaks down before the intending immigrant is granted residency, and the petitioning spouse is willing to assist and appear at the US government interview and explain the breakdown in the marriage. although difficult, an argument can be made to still grant the residency. The couple must be honest with the US government as to the current status of their marriage and be prepared to show evidence of the validity of the marriage up to the point of breakdown.

However, if the marriage has broken down to where the petitioning spouse no longer wishes to assist with the process, and there is a divorce, the intending immigrant cannot continue the petition on their own. For any petition for a green card – marriage or not, - the petitioner is crucial to the process and really holds all the cards. The only way for a spouse to self-petition for a green card is if there was abuse in the marriage and the intending immigrant makes a credible claim for such.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com