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Will Divorce Cause My Case To Be Cancelled? | Effect of Divorce on Immigration Marriage Case

On Behalf of | Aug 6, 2018 | Immigration Court Cases |

In a family-based context, the I-130 is the foundation of any permanent residence case. Whether a person is applying for adjustment of status domestically or an immigrant visa abroad, there must be an underlying approved petition for family member to support the file. Conversely, if an I-130 is denied, any application that is predicated upon its approval will be denied. So, for example, if USCIS denies an I-130 filed by a US Citizen for a foreign national spouse, the I-485 application will also be denied. What is less known is that an approved I-130 does not always stay approved. In other words, there are circumstances and situations under which a relative petition may be automatically revoked.

One of the most common ways that people run into this situation occurs when the petitioning relative dies. Many people who have waited years for their dates to become “current” discover this the hard way after their petitioning relative passes away before their cases are ripe. If the government is timely informed of the death, the family will receive an ominous notification that pursuant to the federal regulations, the petition has been revoked. Otherwise, the beneficiary will inevitably find out at a later date, normally when the I-864 Affidavit of Support has to be executed by the petitioner. But that is not the only way in which an I-130 may be terminated. Under 8 CFR 205.1, an I-130 relative petition may be automatically revoked

· if the petitioner withdraws the petition,

· if the petitioner or beneficiary dies,

· upon legal termination of the marriage upon which the petition was based,

· upon the marriage of a second preference unmarried son or daughter,

· or upon the termination of status of a lawful permanent resident petitioner (unless he or she becomes a U.S. Citizen

As noted, legal termination of a marriage-in other words, divorce-can form the basis of revocation. This is particularly important for marriage-based cases because not all married couples file for an immigrant’s status right away and not all marriages survive through adjudication of an I-485 or immigrant visa application. To illustrate, a lawful permanent resident may file for his spouse under preference category F2A. However, because the petitioner is not a US Citizen, the visa is not immediately available and subject to quotas. Currently, F2A is close to two years behind. Even if the I-130 is approved, the couple must generally remain married in order for the foreign national to make an immigrant visa application or apply for adjustment of status. (There are limited exceptions, such as filing an I360 Battered Spouse Petition.) If a divorce ensues in the interim, the I-130 may become invalid, thereby undercutting any green card application riding on it. As another example, an immigrant may have an approved I-130 filed by his US Citizen spouse. However, due to marital difficulties, the immigrant postpones filing for adjustment of status and the couple test out living separately. The foreign national thereafter files for adjustment of status but before the adjustment interview is scheduled, the US Citizen has filed for and obtained a final judgement of divorce. Under these circumstances, USCIS will likely not approve the adjustment application since the I-130 is no longer sustainable. Once and if the I-485 is denied, the individual may possibly be referred to removal proceedings depending on his circumstances.

Now more than ever, the stakes are critically high for those filing for immigration status, especially for those with problematic circumstances, such as an impending divorce or life-threatening illness. For more information on how to successfully navigate the complexities of immigration law, give our office a call. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney. 

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