Will I Be Deported If I File For Divorce While Not Having Any Immigration Status In USA?
There are three categories of aliens when they land in the United States of America (USA): immigrants, non-immigrants, and undocumented immigrants. The immigrants are those who enter the USA intending to stay permanently while non-immigrants are those who visit the USA for a short period. The last category is of the undocumented people. Such people either entered the USA without being inspected or they initially came on a non-immigrant visa but later did not go back to their origin country.
In this document, we will intend to find out whether an undocumented immigrant will have to face deportation if he/she applies a divorce in Washington State. To get an answer on this matter, firstly we need to understand the existing laws for immigrants and undocumented immigrants.
Effects of divorce on Status of Conditional Resident
The USA gives a conditional residence to a person – for two years – who gets married to a lawful permanent USA resident. Such conditional residence, however, gets converted into a permanent residence on the filing of Form I-751. The person must submit the aforementioned form with the concerned department before 90 days left on the conditional residence. But, if the person files the dissolution of marriage before completing two years of conditional residence, he may have to face difficulty in getting permanent residence. However, the court may not order the deportation of the person seeking a divorce, if he/she proves before the court that the marriage was done in a good faith to live together as spouses forever.
Effects of divorce on an undocumented person
The laws that regulate immigration matters in the USA are Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Immigration Reform and Control Act of 1986. The legal status of the undocumented immigrant is like an alien who is not allowed to work and if he/she gets caught by the immigration authority, he/she may have to face serious penalties. Furthermore, the immigration authorities may deport the alien and permanently bar his/her entry in the USA, even though if his/her family is residing here.
The undocumented immigrants – who get married to the lawful permanent USA resident – can come into limelight easily on filing a dissolution of marriage. This means that they will be subject to deportation proceedings, but deportation is not always the result. At the hearing before the court, ample opportunities are provided to the undocumented immigrants to defend themselves against the deportation. If they can convince the Judge by giving reasonable grounds, they can likely become a legal resident in the USA.
Suspension of deportation
To avoid deportation from the USA, undocumented immigrants can rely on the following grounds:
Continuous stay in the USA
Immigration Reform and Control Act of 1986 (IRCA) allows undocumented immigrants to become legal if they have been staying in the USA since 1st January 1982 (Amnesty). The IRCA also gives immunity from deportation to the aliens who have been agricultural workers since the 1980s. The court may also suspend deportation if the undocumented immigrant has stayed in the USA for more than seven years and he/she proves before the court that he/she had to face extreme hardships with the spouse and children to make both ends meet.
Victim of Abusive partner
The Violent Crime Control and Law Enforcement Act of 1994 gives protection to battered women against the permanent US resident spouse. The reason for promulgation of this enactment is to encourage the undocumented immigrants – who have become victims of domestic violence – to a file divorce petition without any fear of being deported. Under this act, the alien or their children can get the Permanent Resident status if they have resided continuously in the US for three years.
A petition filed by the child
The undocumented immigrant can avoid deportation if his/her US citizen child – who is 21 years old – applies for the permanent residency of the parent. The child will need to prove to the court that the parent is dependent on him/her.
Usually, the option to avail asylum is limited to the people who have entered the USA on a valid visa, however, the undocumented immigrants can also avail the same option. The undocumented immigrant seeking asylum needs to prove before the court the apprehension of being persecuted in the home country.
From the above discussion, it is quite clear that the undocumented immigrants shall face deportation proceedings on the commencement of the dissolution of marriage. However, such proceedings usually do not end up in the deportation of such immigrants. It is pertinent to mention here that the role of attorney/counsel engaged by the undocumented immigrant is very important to get the desired result.