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Divorce in itself is quite an emotionally challenging event. After all, you are separating from the person you decided to spend the rest of your life with. Nothing likely compares to the grief that comes with probably losing the love of your life.
There is only one thing that can make this bad situation even worse – and that is divorcing before you even have your green card interview. But what happens if you divorce before a green card interview? Will you be forced to return to your home country? Is there any way for you to remain in the United States, even though you are no longer married to the partner that was supposed to sponsor your visa?
Truly, right now, you are in a complicated situation. But let us see what your next steps should be.
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If you used your partner’s status to get a visa, then obviously, you are at a high risk of being disqualified. The whole idea for this visa was to allow you and your significant other to remain close to each other, not being separated by countries. So, if the marriage falls through, and right before your interview for that matter, so do your chances of getting a green card.
However, this will also depend on the status of your spouse. For instance, let’s say that you got married to someone that has an H1B visa, and they had their application approved for adjustment of status. If their priority date is not current yet, then separation or divorce might disqualify you from being their “dependent.” If this happens, you might not be able to get a green card once the priority date goes to “current.”
To put it simply, if you are in the United States on another visa, then your green card application will not be affected. After all, if you are there on a work visa, it will matter very little to them whether you are married or not. On the other hand, if you are a derivative of your spouse, then you will have lost the sole thing that made you eligible for the green card in the first place – which means you can’t go on with the application process.
There are certain steps that you can take afterward to prevent yourself from being disqualified – but this will mostly depend on the nature of your marriage.
Both divorce and separation bring forth great scrutiny – but there are still some details that make them different in the eyes of the law. By knowing these differences, you will know exactly what step you should take next in your green card application process.
For one, divorce appears when a family is officially dissolved by the court of law, whereas separation only means that the couple is now living under different roofs. In the case of divorce, the marriage has clearly ended – but in a separation, the couple is still technically together legally, with a chance that they might get back together.
Since separation has not been ended with a divorce, the couple is still seen as married – which means that the application for the visa is still intact. This allows you to jointly file for I-751, despite the fact that you have become separated. You will have to do so within the 90 days before the expiration date of your conditional residence status. Make sure to also bring the documentation proving that you are still legally married.
When you file for permanent resident status, you start your application process for getting a green card. If you get divorced before your interview takes place, then the result will be based on your U.S. entry status. It will depend on whether your status says you are a “primary beneficiary” or a “derivative beneficiary.”
If you have been deemed as “primary beneficiary” for a work visa, then you may go on with the application. So, if you are a “derivative,” then you will no longer have the claims to go on with your application.
This also depends on how long you’ve been married. Marriage to a U.S. citizen does not automatically make you a resident – but it is able to open a few doors. If you’ve been married for at least two years, you may ask for a waiver after legal separation, in which case you might try to get an adjustment of status (i.e. for an employment-based visa)
Although separated couples may remain legally married, it is not as simple to retain your green card as you might think. Some states, for example, see legal separation exactly as a divorce, mostly because they believe it’s exactly how the marriage will end.
On the other hand, there are states that will not officially deem your separation as a precursor of divorce – and regardless of the separation, you might still be given your green card. However, you will need to prove that you entered into the marriage with good faith and that you weren’t just looking to get a green card. You will also need to show that you actually tried to reconcile with your partner before the separation (e.g. statements from a marriage counselor).
There are quite a few ways to keep you in the States – but in the ideal circumstance, you may want to cooperate with your spouse. This way, you may sign a joint waiver with the I-751 after you two have separated. If both of you are still on good terms and the marriage is still valid in the eyes of the law, then you might get a green card – as long as you prove at the interview that you entered in good faith.
The first thing that you should do after your divorce is to contact your attorney, as they will be able to see every detail of your particular case. Considering that divorces place some extra burdens on a conditional resident, giving them a 2-year green card, it can negatively affect the user. This is why you need to file for the I-751 together with your former spouse, proving that when you entered the marriage, you did so in good faith.
If you have been approved an unconditional resident status before divorcing your spouse, then the divorce won’t affect your U.S. residency. The only way this might be affected is if you had any plans of obtaining U.S. citizenship. In most cases, it takes about three years to obtain citizenship – and you’ll have to be married with your spouse. Otherwise, if you are divorced, you’ll have to wait five years for citizenship – after which the USCIS officials will still inquire whether your marriage was bona fide or not.
As you can see, getting a divorce before your interview even takes place can turn into an actual roller coaster. Still, as long as you cooperate with your former partner, there is a chance for you to obtain your green card – but only as long as you prove the marriage was in good faith.
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