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Divorce During Immigration Process - Can I continue with my immigration?

"I’m in the middle of my immigration process and my marriage is falling apart. Can I continue with my immigration?" This is one of the questions we hear a lot.

While a divorce is a difficult situation for any couple, for those who are in the middle of their immigration process, it can become even more problematic. There are two scenarios we’re going to look at in this blog post. Getting a divorce before the conditional green card interview, and getting a divorce during the two-year conditional period. The short answer is ‘yes’ – you very likely can continue on with your immigration but do seek advice from an experienced immigration lawyer so as to preserve your best chance of success as every case is unique and different.

Getting a divorce before the conditional green card interview

If you have filed your petition to become a permanent resident due to marriage but get a divorce before you have had your conditional green card interview, you will need the guidance of an experienced immigration lawyer to help you figure out the best strategy and solution available to you.

If your immigration to the United States is solely based on your marriage to a US citizen, however, the one criterion which made you eligible to apply for the green card is no longer in place. Therefore, you will not be able to continue with your immigration process on that sole basis. Don’t fret, however, as there may be other options.

However, there may be other options available to you, including a possibility of filing a self-petition, depending on many factors such as facts about your marriage and your personal circumstances, whether you’ve been out of lawful status in the past, your education and employment history, among other things. Consult with an experienced immigration lawyer at once if you find yourself in this situation in order to see if an alternative solution may be possible for you to get your green card and remain in the United States.

Getting a divorce before the end of the two-year conditional period

Once a green card is issued, it will usually be a conditional one at first, and you must ‘remove the conditions’ to apply for a ten/10-year green card before the end of the second year. This means, your resident status is given on conditions, which could be revoked if you fail to fulfill the immigration requirements. Since your immigration is based on the marriage to a US citizen, one of the conditions is that you must prove that you have entered the marriage in good faith; that it is not fraudulent and not arranged just to get a green card. Yes, you had to prove that for the first two-year green card, but you’ll have to prove this all over again too at this stage in order to go on and get your 10-year green card.

After two years, the married couple is required to file a joint I-751 Form, which is the petition to remove conditions on residence. Both parties must be present to sign this petition.

Should your divorce be finalized while you are still a conditional green card holder, it may be more difficult to prove to USCIS that your marriage was legitimate from the start, as it ended so soon. However, you can still get your 10-year green card, even so, if you can prove your marriage was a real one despite divorcing so quickly.

A waiver will need to be submitted with the I-751 joint petition, basically saying that you wish to process the removal of conditions on your green card without your ex-spouse. The waiver is here to prove that the marriage was entered in good faith and that the divorce was not due to a fault of your own. It is important to be able to provide evidence of that, because if the divorce was caused by a fault of your own (adultery, criminal behavior, etc.) your chances for being able to continue with your immigration case will be reduced drastically.

There are a few other less common exceptions as well, but in any case, the bottom line is that if you find yourself in divorce court, don’t fret – just reach out to an experienced immigration attorney as soon as possible to explore the options available to you to maintain your permanent residency. Also, we recommend to reach out as soon as possible so as to avoid delay – the passage of too much time after a divorce may also reduce the options available to you, so be sure to seek the counsel of an immigration lawyer right away!

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