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.
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 several of the 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 deal with an 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.
Divorce Before 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. 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 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 include: 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. 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.
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 proof 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 joint the 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 for the 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.
How Our Immigration Attorneys Can Help
The marriage-based green card process after a divorce is usually subjected to intense scrutiny by the USCIS. Failure to prove that your marriage was in good faith could lead cost you your U.S. resident status. This is why you need the service of an experienced immigration lawyer to help you file your evidence and answer USCIS questions about your marriage.
At Immi-USA, we have reliable immigration attorneys who have helped many clients get their green cards and maintain their permanent resident status after divorce. You can schedule an appointment with any of our immigration lawyers by just filling out this free contact form.