Divorce and immigration are two complex legal issues that can often intertwine, especially for individuals who are not U.S. citizens. For immigrants living in South Dakota who are contemplating or going through a divorce, it can be a particularly daunting ordeal. In this article, we will explore some of the implications and options surrounding the intersection of South Dakota divorce and immigration status.
Divorce and Immigration Laws in South Dakota
Before delving deeper into the implications and options, it is important to have a basic understanding of divorce and immigration laws in South Dakota.
Divorce Laws in South Dakota
South Dakota is a no-fault divorce state, which means that a spouse can file for divorce without the need to prove any wrongdoing from the other spouse. The grounds for divorce in South Dakota include irreconcilable differences, extreme cruelty, adultery, abandonment, living separately without cohabitation, and a felony conviction.
Immigration Laws in South Dakota
Immigration laws in South Dakota, as in the rest of the United States, are federal laws that regulate the entry and presence of non-U.S. citizens in the country. Immigration status is determined by the U.S. Citizenship and Immigration Services (USCIS) and can vary depending on factors such as the type of visa the individual holds, how long they have been in the U.S., and their legal standing.
Implications of Divorce on Immigration Status
Divorce can significantly impact an immigrant’s legal status in the U.S. Depending on the circumstances of the divorce, some immigrants may lose their legal status and face the risk of deportation. Here are some of the implications of divorce on immigration status:
Conditional Green Card Holders
If an immigrant obtained conditional permanent residency through marriage to a U.S. citizen or lawful permanent resident, they would have to file a joint petition to remove conditions on their green card within two years of obtaining their conditional status. If the immigrant divorces before the end of the two-year period and cannot file a joint petition, they would have to file for a waiver of the joint filing requirement, or they risk losing their legal status and facing deportation.
Permanent Green Card Holders
If an immigrant who has already received their permanent green card, also known as a lawful permanent resident (LPR), is going through a divorce, they may still lose their legal status if they are unable to demonstrate that their marriage was bona fide. Immigration authorities are wary of fraudulent marriages used solely for immigration purposes, and a divorce early in the marriage could raise red flags. Immigrants will have to show evidence that the marriage was a sincere and genuine union for both parties.
Visas Based on Spousal Relationships
Immigrants who are in the U.S. on a spousal visa and who are going through a divorce may lose their legal status. Visa holders may have to leave the U.S. if they cannot switch their status or obtain a new visa before their current visa expires. Divorce can make it much harder for them to transform their visa status.
Options for Immigrants Going Through a Divorce
Joint Petition
One option spouses who are going through a divorce but are on a conditional green card have is to file a joint petition to remove conditions on the green card. If the spouse files with a joint petition, USCIS may grant the immigrant an extension of their conditional status until the joint petition is adjudicated.
Waiving the Joint Filing Requirement
Another option for conditional green card holders is to obtain a waiver of the joint filing requirement. To do so, the immigrant must show that they entered into the marriage in good faith, and the marriage was terminated due to abuse by their U.S. citizen or lawful permanent resident spouse, or that the immigrant would face extreme hardship if they were to leave the U.S.
Divorce Decree
To protect one’s immigration status in the context of a divorce, immigrants may want to ensure that their divorce decree reflects their legal status accurately. That is, the court should indicate the immigrant’s current status, such as conditional permanent resident or lawful permanent resident, and not accidentally label them as a tourist or a student. This could impact the ability of the immigrant to adjust to another legal status.
Immigration Lawyer
Lastly, immigrants going through a divorce who want to preserve their legal status or who are unsure of their legal status should consult with an immigration attorney. Immigration lawyers can provide guidance on navigating complex immigration laws, determining the best course of action, and represent the immigrant before immigration authorities.
Conclusion
Divorce and immigration are two challenging legal issues, and dealing with both simultaneously can be daunting for any immigrant. South Dakota immigrants going through a divorce must bear in mind the implications of divorce on their immigration status and the options available to them. Seeking professional legal advice from an immigration lawyer is highly recommended.