Legal Question in Immigration Law in New York

Re: K1 visa - divorce

I would need to know more about exactly where your wife is in the process but assume that she is a conditional lawful permanent resident (LPR) (meaning that she has already adjusted her status and received a conditional "green card"). Divorce within the first two years after the grant of conditional permanent resident status may terminate the status so as a general matter it is best to avoid filing for divorce until the conditional status is converted into the permanent one (your wife may apply after two years). However, even if the marriage is terminated within the two-year period, it may be possible to argue that the marriage was entered into in good faith (especially where the couple has children).

If your wife does not even have a conditional "green card" yet, you should exercise extreme caution as a divorce judgment at this time will make her ineligible for adjustment of status (and "green card") and may make her "out-of-status" for immigration purposes. If your marital situation requires an immediate resolution, you may want to look into the option of a separation agreement as an intermediate step.

Custody of the child or any other aspects of a divorce is not directly affected by the immigration status of one parent but, of course, the issues of residence may play a role.

Feel free to contact my offices if you have additional questions.

The above reply is in the nature of general information, is not legal advice and should not be relied on as such.