Divorce is an emotionally difficult situation that most people wish to avoid. However, despite many couples’ carefulness and commitment to their marriages, divorce, and separation are still sometimes inevitable. According to the American Psychologists Association, 40-50% of married couples in the U.S. divorce. So what happens if you marry a U.S. citizen and then divorce? Or on the flip side, get married to a foreign national and then dissolve the marriage? We answer these questions and more in this guide!
Divorce usually affects the social and economic lives of many American residents in different ways. For those who are just settling down in the country and are in the process of obtaining their permanent resident status, divorce can be particularly problematic. So, if you divorce your spouse before your green card interview, how will that affect your status? In this post, we’ll discuss the process of continuing with your green card acquisition after a divorce.
The marriage-based green card interview can happen in various stages of your residency in the U.S. This includes processing your conditional green card and removing conditions on your temporary resident status. You should be prepared to give your best at an immigration interview at any time during this process.
Divorce Before Your Conditional Green Card Application Interview
If you have filed the petition for permanent resident status then your application process has begun. However, if you become divorced before the approval of your green card, the situation will be decided based on your entry status. This depends on whether you are a primary beneficiary or a derivative beneficiary of your entry visa.
If you are the primary beneficiary of an employment-based visa, for instance, you may continue with the green card application process. But as a derivative beneficiary, since you are no longer the spouse of the primary beneficiary of the visa, the sole criteria which made you eligible in the first place, you cannot continue with the process. Conditional green card divorce can be a complex matter to navigate and is best handled alongside qualified immigration professional.
Divorce in the Middle of the Immigration Process
The onus or responsibility is one you to prove that you entered into the marriage with good intentions if you end up getting a divorce in the middle of the immigration process.
What If The Divorce Has Not Been Completed And We Are Just Separated?
While divorce and separation before the green card interview attract increased scrutiny, there are some differences in dealing with these two closely related cases. Knowing the specifics attached to each case will help you make an informed decision regarding your green card application process.
Divorce and Separation in the Eyes of the Law
Divorce is when a court of law formally dissolves a marriage, while a separation means married spouses are living apart, usually because of conflict in the marriage. In a divorce case, the marriage has ended, but in separation, the couples are still legally married, though leaving apart.
Couples who are separated may also choose to formalize it by entering into an agreement authorized by the court of law, indicating their decision to put the marriage on hold and live apart. While separation may be part of the divorce process in some regions, the marriage is still legally valid until it is formally dissolved under the law. Divorce laws in different U.S. states also vary, so you will need to know what the law says in your state. In some states, formal separation may become a divorce after given a period of time.
Say for instance Rasheed was sponsored by a U.S. employer for his green card and his spouse Valeria was a derivative beneficiary on the I-140 as well. So USCIS decided to approved both of their applications for the green card but prior to the interview the couple got a divorce. Since Rasheed is the primary beneficiary he can continue with his green card application but because Valeria is not his spouse anymore she does not qualify. If children are involved, this adds an additional layer of complexity. Depending on who custody is awarded to, it may be possible to have them still be derivative green card applicants. Consult your immigration attorney for the best advice.
Separation and Green Card Interview
Because separation does not end the marriage, the couple is still considered married. This also means that the marriage-based green card application is still intact. In this case, you will be allowed to jointly file an I-751, despite the separation. However, you have to do this within 90 days before the expiry date of the conditional residence. You should also include documents that prove that you are still married.
The exception to this is if the legal separation was done in a state where the couple has been considered divorced because they have been separated for over a given period of time. If this is the case, your green card interview may be treated like a divorce case. If the marriage ended within two years of granting the conditional permanent residency, the non-U.S resident is at risk of losing the green card. However, even though state law considers the marriage to have ended, the applicant for the green card may file the I-751 and apply for a waiver. In this instance, the best way to improve your chances of getting a green card is to consult an immigration lawyer.
Divorce After Conditional Green Card Interview
Your marriage to a U.S. citizen or permanent resident doesn’t automatically make you a permanent resident in the U.S., but it does open the door for a green card. The USCIS will want to ensure your marriage is bona fide, especially if it is less than two years old. So, when you apply for a marriage-based green card, you are going to be issued a conditional permanent resident status renewable after two years.
Holding a conditional green card simply means your resident status is given on conditions, which could be revoked if you fail to fulfill the immigration requirements. As a U.S. immigrant through marriage, one of the conditions you must prove is that your marriage isn’t fraudulent – meaning that it wasn’t arranged in the first place just to get a green card. Therefore, if your marriage is less than two years old, you will be issued a conditional card with a two-year validity period. This is why it is required that couples file a joint I-751, Petition to Remove Conditions on Residence. To complete this form, both members must be present to sign.
Dissolving the marriage in less than two years of your permanent resident status will likely be a red flag to USCIS officials. It casts doubt on your claim that your union was entered into with good faith. Therefore, this situation will require extra effort to prove that the marriage was legitimate from the start.
To do this, you will need to file and submit a waiver for the I-751 joint petition. Meaning you want to process the removal of conditions on your green card without your ex-spouse. The purpose of filing the waiver is to prove to the USCIS that the marriage was done in good faith, and the divorce wasn’t due to your fault.
Some of the evidence to present while filing your waiver includes:
- Showing irreconcilable differences between you and your ex-spouse. You may show proof of adultery, criminal behavior, or battering by your spouse.
- You may also present evidence showing your attempts to reconcile. For example, records of sessions you had with a marriage counselor.
Keep in mind, however, that your claims, regardless of how tenable, will still be put under intense scrutiny by the USCIS. It is advisable that you consult your immigration lawyer before filing the petition.
Divorce While I-485 Pending
In the event that your divorce becomes official while your Form I-485 is pending then you will not be able to get a green card because the relationship it’s based on has ended. Furthermore, once the primary sponsor contact USCIS to let them know that you are no longer their dependent, you do not qualify for a conditional green card or permanent green card.
Say for example John and Maggie are both EB-5 investors but John is the principal petitioner. So they submitted the I-485 and it is still processing but in the interim they have been having marital trouble and are contemplating a divorce. If the marriage is terminated can Maggie still get a conditional green card? Or is it better if she waits until the I-485 is fully processed and then what happens to the I-829 application?
Should they finalize the divorce while the I-485 is still in the adjudicating phase, Maggie cannot get a green card (since this is based on being a derivative beneficiary of John’s I-526) and Maggie will not be able to get a permanent green card either through the I-829 process so it may be better to hold off until all adjudicating has been done on the I-485. Be aware however that if Maggie does get her conditional green card but then gets divorced during that time, she may have issues transitioning to an unconditional permanent resident. It is possible to file a waiver when it’s time to file I-751 to remove conditions but again, evidence will need to be submitted to show it was a bona fide marriage and not immigration fraud.
There is the option, additionally, for Maggie to self-petition on the I-829 but there must be ample evidence that the relationship was in good faith and she must also meet the I-829 requirements.
Divorce After Filing I-751 Jointly
Form I-751 is the Petition to Remove Conditions on Residence (removing conditions on your permanent residency). If you filed this form with your partner and then later got divorced you will likely need to amend your I-751 to a waiver. USCIS may require an in-person interview, depending on the circumstances.
Amending the Petition to a Waiver
Discuss this situation with your immigration attorney so you can gather evidence that you entered into the marriage in good faith. You’ll also need documentation showing that the marriage was terminated. Include:
- Notarized Affidavit (after the divorce is finalized)
- Original Request for Evidence or Interview Notice you received
- Divorce Decree
It can take up to 18 months for this waiver to be processed.
Having a divorce is not an automatic disqualification for having the I-751 approved. Once the I-751 is actually approved you are able to live in any location in the United States.
How Separation Impacts Your Green Card Process
Even though the separated couples often remain legally married, getting a green card based on the union is not as simple as you may wish. Here are some of the implications of being separated from a U.S. citizen or permanent resident spouse with whom you applied for a green card:
Some state laws may classify you as separated
If you have been legally separated at the time of your green card interview, approval will depend partly on state laws. If you are in a state where legal separation is part of the stages of a divorce or if your separation has become a divorce under the law of the state, the immigration authorities will usually consider the legal separation as equal to a divorce and may deny you the green card because of this.
But in states where separation is not officially considered as a precursor to divorce, you may still be given the green card, regardless of the separation. To be successful in this situation, you have to provide evidence that the marriage entered into in good faith in the first place, and not for the purpose of obtaining a green card. In addition, you will need to demonstrate evidence of reconciliation attempts such as a statement from a marriage counselor.
Your spouse may refuse to cooperate
Sometimes, the U.S. citizen or permanent resident spouse may refuse to fill the I-751 form after the separation. If this happens, you can file the waiver of the joint filing requirement and file for permanent residence on your own. In cases of non-cooperative spouses like this, you may choose to wait till the divorce is complete before filing the waiver.
However, if both of you are on good terms despite being separated and the marriage is still valid under the law of the state, you can continue to process your green card based on the marriage. However, you should prepare to answer questions and present evidence to prove that you entered the marriage in good faith.
How to Notify USCIS of Divorce
Do not in any case try to deceive USCIS into thinking you are married if you are actually divorced. This is considered marriage fraud and comes with severe penalties. You will provide USCIS notice of your divorce by your divorce certificate or decree.
Preparing for Your Green Card Interview
Because it is such a sensitive situation, you need to be mentally ready for the interview. The following are tips on how to prepare for the USCIS interview:
- Be sure you have gathered all the documents you need to support your claims. If you think you need more time to prepare, you may request a postponement of your interview date from the USCIS to enable you to have a discussion with your lawyer and get all the evidence ready.
- Be honest with your claims. Don’t try to deceive USCIS officials. Being as factual and truthful as possible will really help your situation. The USCIS officers have been interviewing applicants for years, so they can easily detect false evidence and claims.
- Prepare evidence showing you had a normal relationship before the divorce. You may need to present the certificate of your marriage to show that you have been married for a particular period of time. If there are documents showing properties you and your former spouse owned together, you may show evidence of this. Also, if you have a joint bank account, a mortgage payment made in the family name, and other related documents, you may present them to prove your case further. In addition, if you have children together, showing pictures and additional proofs will also help convince the USCIS officer. Ensure you file your application before the expiration of your present resident status. There are consequences for late filing.
Consequences for Filing of Your Application Late
If you divorce your spouse within the two years of your conditional resident status, you will need to file your waiver for the joint I-751 within 90 days before the expiration of your conditional resident status. Failure to do so may result in:
- Termination of your conditional resident status and the initiation of immediate removal proceedings by the USCIS
- Notification by the USCIS that you have failed to remove conditions on your permanent resident status as expected.
- Summons to appear at a hearing, which will allow you to “review and rebut” the evidence against you.
However, if you can prove in writing to the director at the appropriate USCIS center that you have a genuine reason for not filing for a waiver before the expiration date, you may be allowed to file after the 90 days. It is within the director’s discretion to either approve your petition and restore your resident status or decide otherwise. To avoid the possible removal and all the stress that may follow, you need to ensure you file the waiver before the 90 days.
What Happens After Applying to Waive Joint Filing?
After filing your waiver, you will get an I-797 form, a receipt of notice from USCIS, which will give you the right to maintain your resident status. The extension will help you maintain eligibility to live and work in the U.S. and travel abroad while you wait for the final approval of your green card conditions removal.
Divorce Before Unconditional Green Card Renewal Interview
If you have been issued an unconditional resident status before you divorce your spouse, the divorce will not in any way affect your residency in the U.S. The only area you may be affected is if you wish to obtain citizenship. Ordinarily, if you are married to a U.S. citizen, it takes just three years to be eligible for citizenship after the issuance of your marriage-based green card.
However, if you are divorced from your citizen spouse, you will have to wait five years before you can be eligible for U.S. citizenship. During your citizenship application process, the USCIS examiner may still want to be sure that your marriage, which qualified you for permanent resident status, was bona fide. This may lead to an investigation to determine that the marriage was in good faith and not just for the purpose of immigrating. Failure to show this legitimacy may lead to denial of naturalization and you may face criminal prosecution for immigration fraud.
What if My Application Is Denied?
If your waiver application is denied by the USCIS, you will receive a letter detailing why the denial took place, and will likely lead to removal proceedings. However, the removal proceedings will first be reviewed by an immigration judge who will decide if you should be removed.
If the immigration judge decides to remove you, you may appeal the decision of the judge within 30 days after the verdict. The best thing you can do in a situation like this is to talk with your immigration attorney who will help you in filing the right evidence and advise you on the right steps to take to avert the removal.
Victims of Marriage Fraud
If you are under the impression that the person you married was using you solely to get a green card you can file a report with USCIS or ICE and they can initiate an investigation. If after their analysis, they find evidence that it was a sham, they can be deported and have a fraud charge on their record so they wouldn’t be able to get a U.S. green card or visa again.
How We Can Help
Are you looking for the best way to divorce an immigrant spouse or are you on the other end and risk losing your status in the U.S. due to a divorce? The VisaNation Law Group attorneys have years of experience handling even the most complex marriage green card cases. They can advise you on what to expect when going through the process. Fill out the Immigration Consultation form to get started!