How Divorce Affects Immigration Status in the U.S.
Updated: Jun 16
"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, it can become even more problematic for those in the middle of their immigration process.
The short answer is 'yes' – you very likely can continue with your immigration but seek advice from an experienced immigration lawyer to preserve your best chance of success as every case is unique.
Related: Getting a VAWA Green Card
Getting a Divorce Before the Conditional Green Card Interview
Suppose 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. In that case, you will need an experienced immigration lawyer's guidance to help you figure out the best strategy and solution available to you.
Filing a self-petition depends on many factors, like facts about your marriage, 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 to see if an alternative solution may be possible 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 10-year green card 90 days before, but no later than 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 U.S. 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 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, to go on and get your 10-year green card.
Between 90 days before expiration of the conditional green card, but no later than the actual day the conditional green card expires, the married couple must file a joint I-751 Form, the petition to remove residence conditions. Both parties must jointly sign this petition.
Should your divorce be finalized while you are still a conditional green card holder, it may be more challenging 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, if you can prove your marriage was a real one despite divorcing so quickly.
In this case, you will not file a joint petition to remove the conditions on your residency. Instead, you’ll need to file an I-751 Petition to Remove Conditions on your residency but you will have to ask the government for a waiver to allow you to waive the usual joint filing requirement.
You will not need your ex-spouse to participate in this process with you. However, you will still have to prove that your marriage, nonetheless, was in good faith. Immigration may want to know the reasons for your divorce and will definitely want to look at your divorce paperwork as well.
The chances of continuing with your immigration case could be reduced drastically if you do not consult with an attorney well-versed in both immigration and divorce law to ensure that your divorce paperwork will not cause problems for you with immigration afterwards.
There are a few other exceptions as well. Still, in any case, the bottom line is that if you find yourself in divorce court, don't panic –reach out to an experienced immigration attorney as soon as possible to explore the options available to you to maintain your permanent residency. We recommend reaching out as quickly as possible to avoid delay – the passage of too much time after a divorce may reduce the options available to you, so be sure to seek the counsel of an immigration lawyer right away!
The Purpose of Conditional Residency
When you apply for a marriage-based green card, immigration authorities examine the application closely to determine whether or not your marriage is the real thing and not for the sole purpose of evading immigration laws in order to obtain residency and a green card.
USCIS ('Immigration') sees many fraudulent marriage cases. In an attempt to combat fraudulent marriages, Immigration issues conditional green cards.
If you have been married for less than 2 years at the time you obtain your green card, Immigration will issue you only a 2 year conditional green card rather than a 10 year permanent green card. Then, they will ask you to prove that your marriage still is, or was, a real good faith marriage again at the 2 year mark in order to obtain your 10 year permanent green card.
Conditional residents get the same rights as permanent ones, like the ability to enter and exit the U.S., accept employment offers, and work towards citizenship. The key difference between conditional and permanent residency is that conditional ones expire after two years.
After this time, the immigrant must prove that the marriage is ongoing and legitimate or if divorced, they must prove that the marriage was in good faith and either ask for a waiver based on divorce or abuse.
What to Do if You’re in the Process of Getting a Green Card
If you were already in the process of obtaining your green card before your marriage ended, you would no longer be able to secure the green card based on marriage. But, if your marriage was a good faith union, there’s still an option: apply for a waiver of termination.
For your waiver of termination to be valid and accepted by the government, you must have one or more of the following things:
Proof that your marital union was legitimate and valid. Examples of this include photographs, joint bills, evidence of leases or shared property, and any other evidence that shows you and your spouse had a life together.
Proof that the spouse who was looking to obtain the green card will suffer hardships if they can’t stay in the U.S. One good example of this is a statement about their life they built in the U.S. so far.
Proof that the spouse suffered abuse or cruelty from the U.S. citizen they married. Things like sworn statements from neighbors and family members are perfect in this situation.
Related: Family-Based Immigration
What to Do If You’re in the Process of Securing U.S. Citizenship
When you have a marriage green card and apply for U.S. citizenship, the government looks at your immigration file to take a close look at information regarding your marriage. If you go through a divorce or annulment during this process, it usually triggers a complete re-examination of your case to determine if the marriage was legitimate or not.
If you submit the form for citizenship after a divorce, you will most likely have to provide documentation proving that your marriage was not fraudulent for the sake of obtaining a green card.
There is one exception -- if you’re applying for citizenship under the 5-year rule, divorce and separation do not affect the process like in the 3-year provision.
In Summary: Marriage Green Cards, Naturalization, and Divorce
If you marry a U.S. Citizen, you are in the U.S., and you are otherwise eligible, you may apply for a green card - in other words, you may apply to become a lawful permanent resident in the U.S. This is also referred to as adjusting your status in the U.S. The end result is a green card, assuming you are successful.
If your marriage is fairly new, meaning you have been married for only two years or less at the time immigration approves your green card (aka, grants you lawful permanent resident status), then you will only receive a two-year green card. A 2-year green card is a ‘conditional green card,’ or ‘conditional lawful resident status’.
If you have already been married for more than two years by the point in time that USCIS (‘Immigration’) grants your green card, then they will usually give you a permanent 10-year green card. If you receive the 2-year conditional green card only, you must later apply to remove the conditions on your green card and apply for your permanent 10-year green card.
If you only receive a 2-year green card, when must you apply to remove your green conditions and ask for your 10-year permanent green card? It depends. If you remain married still, then you may apply as early as 90 days before the expiration of your 2-year green card, but you must apply by the expiration date of your 2-year green card.
This is very important as late filing may cause complications and will require you to explain why you filed late to Immigration. If, however, you have divorced and no longer remain married, then you may go ahead and file to remove the conditions on your green card at any point in time before your two-year green card expires.
Suppose you remain together, happily married to a U.S. citizen spouse, and you have had your green card for three years. In that case, you may now be eligible to file your naturalization application asking Immigration for citizenship so you can become a U.S. Citizen. If you are no longer married to your U.S. citizen spouse, you must wait for five years before being eligible for citizenship.
In either case, whether you are eligible at the 3-year mark or the 5-year mark, you may apply as early as 60 days before your appropriate mark in time—3 or 5-year date. Of course, your eligibility will depend on other factors, too, so always be sure to consult with an experienced immigration lawyer to make sure you qualify for immigration benefits before applying for any benefits such as green cards or citizenship.
Related: Employment Immigration
What to Do After a Divorce as an Immigrant
Challenges during immigration are often a result of an unfortunate divorce, but in any of the situations we talked about above, the best thing you can do to increase your chances of staying in the U.S. is to obtain the advice and representation of a reputable immigration attorney. No matter what your immigration status is, you have the right to fair treatment, and an immigration attorney can make sure that you get it.
Are you struggling to keep your green card or residency status after a divorce? JLB Law Group is here to help you stay in the U.S.! The legal process can be overwhelming and intimidating. The law office of Jennifer L. Bennett offers a friendly, experienced hand to navigate US Immigration Law. We want to help keep your family safe and legally placed in the United States.Contact us today for a consultationto discuss your situation.