Green Card Marriage Divorce Guide

Posted by Frank Gogol

Divorce is not uncommon in today’s society. Almost 50% of marriages in the U.S. end in divorce. As if the trauma of a divorce isn’t enough, getting a divorce (or even being separated) could severely impact your green card process and immigration attempts to the U.S. Have you considered the fact that your divorce could possibly lead to you having to leave the U.S. permanently? 

Let’s take a look at whether you can get a green card marriage divorce and how a divorce or separation could influence your immigration attempts. 

Can a Green Card Marriage Get Divorced? 

If you have a green card marriage, you can get a green card marriage divorce. There is nothing legally stopping you from getting a divorce. It is an entirely different question, however, how the divorce will impact your green card application and immigration attempts. Will you still be able to get a green card? Will you have to give up your green card that has already been approved?

It is essential to know the answers to these questions so you know what to expect going forward and can prepare as best as possible. Depending on where you are in your immigration process, you might want to consider getting separated first and seeking a legal divorce later. 

Let’s delve a little deeper into this issue. 

Difference Between a Divorce and a Separation

A divorce is when a court legally ends a marriage. Separation is when a couple lives apart but is still legally married. It is important to know the difference between divorce and separation, so you can make the right decisions and protect your immigration status. 

The legalities around separation differ from state to state. In some states, a formal separation could result in a legal divorce after a certain amount of time. In other states, separation won’t have any impact on your legal status. Make sure what the laws are in the state you live in. The United States Citizenship and Immigration Services (USCIS) will interpret the state law and decide whether the separation or divorce ended your marriage and what consequences flow from that. 

How Will a Divorce or Separation Affect My Green Card Status?

A divorce or separation will affect your green card status if:

  1. You are a conditional resident, or 
  2. If your immigration status or eligibility depends on your spouse’s immigration status. 

Conditional residency applies if you used your spouse’s U.S. citizenship or lawful permanent residency to immigrate after your marriage. For the first two years of your marriage, you will be considered a conditional resident. To move from conditional residency to permanent residency, you must file a Form I-751 (Petition to Remove Conditions of Residence). You must submit Form I-751 in the last 90 days before your conditional resident green card expires. Usually, both spouses have to file this form together. You also have to submit documents showing you two are still together. 

If, however, your marriage has already ended under your state’s law by the time you file the Form I-751, you have the option to file by yourself. You would need to file an I-751 waiver to be able to do this. 

Your immigration options may also be dependent on your spouse’s current visa or pending visa application. For example, if your spouse applies for an H1B visa. This would make you a derivative applicant. In such a case, a divorce or separation could disqualify you from being a “dependent” or derivative applicant and end your immigration process. 

If your divorce occurs before your application for a green card is approved, divorce dissolves the relationship which made you eligible for the green card. This would be the end of the visa process for you. Even if your petition has been approved by the USCIS, until your green card has been approved, you are dependent on the relationship with your spouse to qualify for a green card. 

What Happens When a Divorce is Before a Green Card is Issued?

Divorce affects your green card differently, depending on what stage your green card application is in. 

After Form I-130 Approval

If you’ve filed your petition and the USCIS has approved your Form I-130, Petition for Alien Relative, you’re still not in the clear. If you get a divorce at any time before the green card is issued, your ability to obtain the green card will be nullified. This is because your eligibility for the green card relies on your relationship with your spouse. If that relationship disappears, your eligibility for a green card goes with it. 

After Permanent Residence is Approved

If you already have a green card, and you are a permanent resident at the time of your divorce, your divorce will not affect your immigration status. This is true even if you have a green card marriage. At this point in the process, there is no reason for the USCIS to review your case. The fact that you get a divorce will not attract scrutiny from the USCIS. 

It could, however, force you to wait longer to apply for naturalization since you no longer have a citizenship marriage in place. If you get a divorce before naturalization, you will have to wait 5 years before you can apply for naturalization where initially you would only have to wait 3 years. 

After Conditional Residence Has Been Approved

If you are a conditional resident, getting a divorce doesn’t automatically end the road to a permanent green card. It might just make it a little more complicated. 

When you file your Form I-757 (as explained above), you will need to prove the bona fides (good faith) of your original marriage. A good faith marriage just means you genuinely intended to live together as spouses when you first got married. A divorce may cast doubt in the USCIS’s mind on whether the marriage was genuine.  

Even though you can still file the Form I-751 without your previous spouse, the USCIS will place additional scrutiny on your case. They need to confirm the marriage was not entered into for the purpose of circumventing immigration law or to fraudulently obtain a green card. The burden of proof lies on you to prove this. Any documents that could show the USCIS you got married for real reasons will help as evidence in your case. You can prove this by submitting documents showing you had a normal married life before the divorce. You can include proof of a joint banking account or credit card, for example, or even prove you shared coverage under the same health insurance plan.  

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Conclusion

Divorce can be a challenging and traumatic event. When such an important relationship breaks down, the last thing you want to think or worry about is your immigration status. Unfortunately, to protect yourself you have to. Consider the information we provided above to understand where green card marriage divorce or separation could leave your visa application. If you need more specialist advice, also consider contacting an immigration attorney. The last thing you want is to have to deal with a divorce and deportation at the same time.

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