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Last Updated On: January 25, 2024 | Published On: November 18, 2023
Divorce is never pretty, but in the case of immigration law, it can be devastating in the wrong circumstances. Understandably, many immigrants who come to the United States wonder if a divorce will jeopardize their green card. If you were granted U.S. residence due to a marriage to a U.S. citizen, then your initial “conditional” green card is valid for 2 years.
To receive a permanent green card, you are required to file the I-751 Petition to Remove the Conditions of Residence. Both you and your new spouse must sign it and mail it within 90 days to the USCIS before the date your conditional green card is issued. However, not all marriages make it the entire two years. In this post, we’ll explore options when it comes to obtaining a green card after divorce or separation.
Because the I-130 application form is only the beginning of your immigration journey toward a green card, there is nothing legally binding you to the U.S. Therefore, you will be unable to continue pursuing your green card if you and your spouse get divorced.
However, if you already have legal permanent residency, then divorce after green card approval will not impact your status. This will only be an issue should you apply to obtain U.S. citizenship through naturalization.
What happens if you get a green card divorce before the end of the two-year conditional period? If you find yourself in this scenario and the final order of divorce is obtained before the initial period ends, then you will need to convince the USCIS that there is a valid reason to bypass the joint filing requirement. This can be done by demonstrating that the marriage was bona fide, to begin with, and not a fraud.
What are some things you can use to prove the marriage was entered in good faith?
If your case is not compelling and the USCIS finds that the marriage ended due to fault on your behalf (i.e., adultery, abandonment, etc.) you will likely have your I-751 petition denied.
Not sure where to start with your green card? Consulting with a qualified immigration attorney can offer formal guidance for your specific situation. We can help you know for certain what documents you must submit.
If you’ve received a final decree of divorce or annulment, you have the flexibility to file Form I-751 regardless of how close you are to your conditional green card’s expiration date. In situations where you are separated but your spouse is unwilling to jointly file the I-751 form, you’ll need to proceed on your own.
To accomplish this, you’ll have to apply for a waiver to bypass the joint filing requirement. This waiver necessitates that you furnish proof demonstrating two key points. First, you did not initiate the termination of the marriage. Second, you entered the marriage in good faith from the beginning.
As previously mentioned, you’ll need to submit evidence to the USCIS, demonstrating that the fault was not on your part. Examples of evidence include:
It is important to note that this list is not exhaustive. Consult an immigration attorney to learn about other types of evidence that may be appropriate when contemplating a green card after divorce.
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A legal separation differs from a divorce in that it doesn’t officially dissolve a marriage; instead, it serves as a formalized agreement that both parties are leading separate lives. In the eyes of immigration law, the couple remains married because the marriage has not legally ended. Consequently, the non-citizen spouse may still be eligible for a permanent green card, even if the couple is living apart.
However, there’s a specific exception. If the couple resides in a jurisdiction where a legal separation automatically converts into a divorce after a certain period, then the non-citizen spouse may not qualify for permanent residency under the same terms.
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How long after citizenship can you divorce? As the spouse of a U.S. citizen you have the ability to file for naturalization after 3 years of obtaining your green card but during that three-year time you must be living with your spouse, your spouse’s citizenship status can’t have changed and you must still be married until you get full citizenship. Should you get divorced in that period you’ll have to wait five years to file for citizenship instead of three.
As the spouse of a U.S. citizen you have the ability to file for naturalization after 3 years of obtaining your green card but during that three-year time you must be living with your spouse, your spouse’s citizenship status can’t have changed and you must still be married until you get full citizenship. Should you get divorced in that period you’ll have to wait five years to file for citizenship instead of three.
There are several factors to consider if your divorce is not yet final. If you or your child was subject to battery or violence from the citizen spouse, then you may be able to bypass the divorce waiver. If that’s the case, you’ll need to file Form I-751 with a and/or I-751 with a waiver based on abuse/battery.
The waiver for abused spouses, parents, and children is under the Immigration and Nationality Act (INA) as amended by the Violence Against Women Act (VAWA). This applies to both men and women.
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You will need to file your I-751 form with a waiver for joint filing within 90 days of the expiration of your conditional permanent resident status. Failure to file before the expiration can make the situation more complicated.
If you are late when applying, the USCIS will automatically terminate your conditional resident status and commence removal proceedings against you. A notice will be sent to you to inform you of your failure to remove the conditions. You will also be sent a “Notice to Appear” at a hearing, where you will have the chance to review and rebut the evidence against you.
For your late application to receive approval, you will have to prove in writing to the director of the USCIS Service Center that you have a genuine reason for submitting late. It will be the director’s prerogative to either approve your petition and restore your permanent resident status or not. To avoid losing your immigrant status, you should be sure to apply within the stipulated time.
After submitting your I-751 with a waiver for joint filing, the USCIS sends you a notice of receipt. This will contain with on how to proceed with your application process. This will give you the eligibility to continue living and working in the United States and travel internationally while waiting for the final approval of your green card.
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Apart from being sponsored by a U.S. citizen or lawful permanent resident spouse, your green card application may also be in connection to a spouse whose own green card is being sponsored by an employer.
For example, Vihaan, a native of India, has been working on an H-1B visa and his wife, Prisha, is on an H-4. If Vihaan’s employer filed an I-140 form to sponsor his green card, then Prisha would also be covered under the same immigrant petition as an immediate relative.
This means that she can also apply to adjust her status from an H-4 visa holder to a green card holder. In such a scenario, Vihaan is the principal beneficiary of the green card application, while Prisha is a derivative beneficiary. If a divorce happens, the stage of the H-1B to green card application will determine whether Prisha will still be eligible to get a green card.
If a divorce happens at any point before the application is approved, then the green card process for the derivative beneficiary will end. The divorce means the relationship that made her eligible has been dissolved. Using the case of Vihaan and Prisha above as an example, Vihaan, being the principal beneficiary, can proceed with the process, attend the green card interview, and receive his green card. As for Prisha, she is no longer eligible because she is not Vihaan’s spouse any longer.
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If a divorce happens after the adjustment of status application for both the principal and derivative beneficiaries has been approved, then the divorce will not affect the green card application. This means that, when the green card is available, both the principal and derivative beneficiaries will have their green card, regardless of the divorce that has happened. The USCIS will likely not have any reason to review the case again.
However, there may be some issues if the end result is a conditional green card. This is because the divorce will cast doubt on the authenticity of the marriage in the first place. For this reason, the conditional resident green card holder will have to file an I-751 form with a waiver for joint filing, as explained above. You will have to prove to the USCIS that the marriage was entered into in good faith in the first place and not solely to obtain a green card.
If you already have your 10-year green card and you get a divorce, you are free to remarry whomever you wish without impacting your status. However, if you have not yet gotten your green card or your green card still has conditions on it, then you will either have to file a waiver and prove the above criteria or you will have to marry another U.S. citizen and have them serve as your new sponsor, effectively starting the process over again.
If you are already under a non-conditional lawful permanent resident status, you will not be deported for leaving your husband or wife. If you become a U.S. citizen, you will have complete immunity from deportation in all circumstances.
Getting a divorce before obtaining your green card or before having the conditions on your 2-year green card removed can be a difficult situation. However, once you have a 10-year green card, you will be able to get a green card divorce without jeopardizing your lawful permanent resident status.
Yes. Once your conditions have been removed, you will not need to be married to a U.S. citizen to maintain your status. However, you will be unable to pursue U.S. citizenship unless you have been married to a citizen for a certain amount of time. It is best to consider this if citizenship is your goal.
Fortunately, marrying a U.S. citizen classifies you as an immediate relative of that citizen. Unlike employment and family-based green cards, immediate relative green cards are always available. You will have to wait until your petition is approved, but you will not need to wait until your priority date is current before adjusting your status.
If your spouse abandoned you and you are without a green card or status, then you may be eligible to self-petition under VAWA. Under no scenario should you lie about emotional or physical abuse in an attempt to acquire immigration benefits.
If you are a permanent resident with a ten-year green card, then getting a divorce will not affect it.
This question has a two-fold answer. The U.S. citizen spouse can cancel or withdraw their I-130 (petitioning for you) but they cannot cancel your I-485. You may be eligible to file a VAWA self-petition if your spouse has demonstrated emotional or physical abusive behavior during your relationship.`
NOTE: Whether your green card was sponsored by a U.S. citizen ex-spouse or through any other route, you should bear in mind that the divorce will always carry some red flags concerning your eligibility for naturalization. By the time you submit the N-400 form, the USCIS will review your immigration history, including the green card application process. Because of the divorce, they will likely scrutinize your petition even further.
During your naturalization interview, you may be asked a few questions about the circumstances that led to the divorce. You may also be asked to provide additional evidence to prove your marriage wasn’t fraudulent. If you are unable to convince the officers with strong supporting evidence, your application may be denied.
Ordinarily, the marriage-based green card application is a rigorous process on its own, which will definitely be more complicated if a divorce is involved. The good news is that you can save yourself all the stress and significantly improve your chances of approval by working with an experienced green card immigration attorney.
Tags: Adjustment of Status, Green card Conditions
