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.
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 2-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 2-year period. If your children also received their green cards at the same time as you, then you can include them into 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.
Divorce After I-130 Approval
Because the I-130 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 a 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 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.
- Burden of fault lies with ex-spouse. If the divorce was due to your spouse’s alleged adultery, imprisonment or another relevant reason you can 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.
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 Our Immigration Attorneys Can Help
An immigration lawyer is best qualified to answer questions related to your green card after divorce or legal separation. We have provided support for hundreds of immigration clients dealing with everything from employment-based immigration to asylum and marriage.
If you would like to get in touch with one of our experienced immigration attorneys, feel free to complete this simple contact form to schedule a consultation today.