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 a period of 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 prior to 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.
Divorce After I-130 Approval
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.
Getting Your Green Card After Divorce
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.
A qualified immigration attorney will also advise you to prepare a formal explanation of the reasons for the green card divorce occurring. 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.
Filing I-751 Waiver Before Finalizing Divorce
If you have a final order of divorce (or annulment), you are able to file Form I-751 at any point even if you aren’t approaching the conditional green card expiration date. If you are currently separated but your spouse is not willing to file an I-751 form you will have to petition alone. To do this, you will need to submit a waiver for the joint filing requirement. The waiver requires that you provide evidence that the marriage was not ended on your account and that your marriage was legitimate from the start.
Submitting Evidence Regarding Divorce
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:
- Disagreements related to irreconcilable differences (i.e., child-rearing, finances, etc.) This is what’s known as a no-fault green card divorce.
- The burden of the fault lies with the ex-spouse. If the divorce was due to your spouse’s alleged adultery, imprisonment, or another relevant reason, you could provide affidavits from people in your life familiar with the situation.
- Attempts to reconcile (i.e., marriage counseling). If there was an effort on your part to seek marriage counseling or another form of reconciling help you can supply to invoices from the session. This will help the USCIS see that the marriage was bona fide, to begin with, and that you are not at fault for its termination.
It is important to note that this list is not exhaustive. Consult an immigration attorney to learn about other types of evidence may be appropriate when contemplating a green card after divorce.
Conditional Green Cards and Divorce vs Legal Separation
A legal separation, unlike a divorce, does not officially terminate a couple’s marriage, but it is a formal agreement indicating that the two parties are living separate lives. Due to the fact that a legal separation doesn’t legally end the marriage, the couple is still technically married for immigration purposes.
The non-citizen spouse may still be able to acquire a permanent green card although the couple is not living together due to the separation. There is an exception to clause if they are legally separated in a jurisdiction where they are viewed as divorced after a certain amount of time has passed.
Factors to Consider–Green Card After Divorce
There are a number of 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 http://www.uscis.gov/i-751 and/or I-751 with a waiver based on abuse/battery.
After You File
After filing your petition, you’ll be issued a receipt notice (on Form I-797) to serve as a green card after the conditional status expires. This will permit you to live and work in the U.S. as well as travel overseas. If you receive any types of RFEs (requests for evidence), be sure to respond in a timely manner. A green card attorney can guide you as to which documentation is necessary.
Criteria for Removing Conditions on Green Card
The USCIS states on their website that there are five situations in which you may apply to have the conditions on your two-year green card removed. Many of these are contingent on the idea that you entered the marriage in good faith (meaning that the marriage was not fraudulent).
- If you are still married to the legal permanent resident (LPR) or U.S. citizen at the end of the initial two-year period. If your children also received their green cards at the same time as you, then you can include them in the application.
- If you are a child of a parent who has a conditional green card and cannot be included in their application.
- If you entered into the marriage in good faith, yet your spouse is deceased.
- If you entered into the marriage in good faith yet, you or your child experienced extreme hardship or battery at the hands of your spouse.
- If you entered into the marriage in good faith yet, your marriage was terminated through annulment or divorce.
This last situation is the most pertinent to this article. It essentially states that you will be able to apply to have the conditions removed on your green card after divorce.
When to File Your I-751 Form
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 file the application within the stipulated time.
What Happens After Applying?
After submitting your I-751 with a waiver for joint filing within the stipulated time, the USCIS sends you a notice of receipt with details 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.
How Does Divorce Affect the I-140 and I-485 Green Card Forms?
Divorce after marriage can also be viewed in relation to employment-based sponsorship. 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.
Divorce Before Adjustment of Status Approval
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.
Divorce After Adjustment of Status Approval
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 for the purpose of obtaining a green card.
Green Card Marriage Divorce FAQs
Can I Get Divorced Before Getting The Green Card?
If you are planning on getting a divorce while your green card is pending, then there are some things to consider. A K-1 visa divorce could cause complications if not handled correctly. As we have mentioned earlier in this post, filing a waiver is vital to preventing your petition from being denied if your marriage ends before your green card is secured.
You will need to show that the marriage was entered in good faith and that it was legitimate. Photos, joint bank accounts, shared assets, and other similar things can help bolster this case. You will also need to show that you would experience extreme hardship if you were to be sent back to your home country. Finally, if you have been subjected to cruelty by your sponsoring spouse, you can show official witness statements from anyone involved with your relationship.
What About Remarriage After a Green Card Divorce?
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.
Will I Be Deported If I Leave My Partner?
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.
How Long After My Green Card Can I Divorce?
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.
Can I Divorce After Getting a 10-Year Green Card?
Yes. Once your conditions have been removed, you will not need to be married to a U.S. citizen in order 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 take this into consideration if citizenship is your goal.
How Long Will It Take To Get My Marriage Green Card?
Fortunately, marrying a U.S. citizen classifies you as an immediate relative of that citizen. Unlink 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.
How Does Divorce After a Green Card Affect Naturalization?
After staying on an immigrant status for a certain period, a green card holder can file an N-400 form, otherwise known as an Application for Naturalization, to become a U.S. citizen. Your eligibility to apply for citizenship by naturalization may or may not be affected by a divorce after a green card, depending on how your immigrant status was sponsored.
Filing for Naturalization After Three Years
A green card holder whose immigrant status was sponsored by a U.S. citizen can file for naturalization after three years of having a green card. However, to be eligible, you must still be in the same marriage with the U.S. citizen that sponsored your green card. You must remain married from the beginning to the end of your naturalization. If a divorce occurs before or at any stage during the citizenship application process, you may no longer be eligible to receive U.S. citizenship under this category.
Filing for Naturalization After Five Years
Apart from the spouses of U.S. citizens, all other green card holders must wait at least five years after receiving their immigrant status before filing for naturalization. At this point, your eligibility to become a U.S. citizen is no longer tied to your marriage. Therefore, if a divorce happens in a situation like this, it will not affect your eligibility to apply for naturalization.
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.
