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  • Writer's pictureJames Chau

Divorce and Immigration Law in California: Navigating the Complexities When One or Both Spouses Aren't U.S. Citizens


immigration and divorce

Divorce is a challenging process, particularly when immigration status is involved. When one or both spouses are not U.S. citizens, divorce can significantly affect their ability to live and work in the United States. As a Certified Family Law Specialist by the State Bar of California Board of Legal Specialization, James Chau encounters many cases with non-citizen spouses navigating these complexities during a divorce.  Here are some tips that may be of help to you if you are a non-citizen divorcing in California.


Immigration Status Impact

Conditional permanent residents, those who have been married to a U.S. citizen for less than two years when their green card was issued, can face unique challenges in the event of a divorce. The divorce jeopardizes their conditional residency status, requiring them to file Form I-751 (Petition to Remove Conditions on Residence) and request a waiver. The waiver options include:


  • Divorce or annulment (demonstrating the marriage was in good faith).

  • Extreme hardship if deported.

  • Abuse by the U.S. citizen spouse.


Conditional Permanent Residence and Waiver Options

Conditional permanent residents who divorce must file an I-751 waiver application to remove conditions without the assistance of their U.S. citizen spouse. Waiver grounds include the good faith marriage exception, which requires proof that the marriage was bona fide despite ending in divorce. The extreme hardship waiver requires evidence that the non-citizen spouse would face hardship if forced to return to their home country. Furthermore, victims of abuse by a U.S. citizen spouse can seek protection through the Violence Against Women Act (VAWA) waiver.


More information on conditional permanent residence and waivers is available through the U.S. Citizenship and Immigration Services.


Spousal Support and Custody Implications

In California, divorce significantly affects spousal support (alimony) and child custody arrangements, complicating immigration status for non-citizen spouses. Courts consider the child's best interests when determining custody matters, including international child custody cases that may involve jurisdictional conflicts. Additionally, spousal support arrangements may impact a non-citizen spouse's ability to meet visa or green card requirements.


International Aspects and Jurisdictional Challenges

When one spouse returns to their home country, enforcing child support or custody orders can be challenging due to conflicting legal frameworks between the U.S. and foreign jurisdictions. This necessitates the involvement of legal professionals who can bridge the gap between different family law systems.


Practical Tips for Non-Citizen Spouses

Non-citizen spouses should maintain documentation proving the legitimacy of their marriage, such as photos, joint bank account statements, and affidavits from friends. Seeking legal advice is crucial for understanding their rights and obligations. Post-divorce visa options include self-petitioning under VAWA, filing for an I-751 waiver, or exploring other visa categories. Comprehensive legal advice can help non-citizen spouses navigate the complexities of U.S. immigration law.


Navigating divorce as a non-citizen spouse in California requires careful legal guidance due to the interplay between family law and immigration law. For tailored assistance, contact James Chau, a Certified Family Law Specialist, at (408) 899-8364 or visit our contact page to schedule a consultation. Protecting your rights and future is our priority.

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