While there are different ways to obtain a green card, one of the most straightforward and common is through marriage. If you get married to a U.S. citizen or a green card holder, you are immediately eligible to apply for a green card whether you currently reside within or outside of the United States.
However, obtaining lawful permanent resident status through marriage also presents challenges in the event of a divorce. If you obtained a green card through marriage and are now facing a divorce, here is what you need to know:
1. Getting Divorced Does Not Necessarily End Your Path to Citizenship
Getting divorced will not necessarily terminate your lawful permanent resident status, nor will it necessarily end your path to becoming a U.S. citizen. The law recognizes that relationships come to an end, and it allows for non-citizen divorcees to continue to pursue lives and careers in the United States.
But, depending on certain factors (such as whether you have a “conditional” green card and how long you have lived in the United States), getting a divorce may impact your immigration status. If your green card application is currently pending and your divorce is finalized before USCIS grants your visa (green card), your divorce will make you ineligible for a green card. If you get divorced after green card approval, that is a better scenario, but more on that below.
2. Getting Divorced After Form I-130 has been Approved
The first step to obtaining a green card through marriage to a U.S. citizen or green card holder is filing Form I-130, Petition for Alien Relative. This form must be filed by the spouse who is already a U.S. citizen or lawful permanent resident, although both spouses will need to be involved in the application process. If an approved I-130 is as far as you have gotten in the green card process, a divorce at this stage will make you ineligible to obtain a green card through marriage.
3. Getting Divorced While Form I-485 or DS-260 is Still Pending
If you have applied for an “adjustment of status” using Form I-485 in the U.S. or Form DS-260 abroad, and you get divorced before it’s been officially approved (also known as adjudication), this will effectively end your green card process. If you have secured a green card prior to your divorce, then your divorce will not have any immediate consequences for your immigration status. You will be permitted to continue living in the United States after your divorce, and the next step in the immigration process will come at the same time it would have had you remain married.
4. Removing Conditions from Your Green Card
If you were married for less than two years when you received your green card, then you were granted lawful permanent resident status on a “conditional” basis. This means that your green card (technically, a “conditional residence card”) has an expiration date, and you must apply for removal of conditions within the 90-day period before your residence status expires.
In order to apply for removal of conditions, you must file Form I-751, Petition to Remove the Conditions of Residence. If your divorce has been finalized, you can file Form I-751 by yourself. However, if your divorce is still in process, then you will need to file the form jointly with your spouse.
When filing Form I-751 by yourself after a divorce, you must also request what is commonly known as a “divorce waiver.” In order to obtain this waiver, you will need to be able to convince USCIS that your marriage was bona fide (i.e. that you did not get married solely for immigration purposes).
When reviewing your application for removal of conditions, USCIS will be looking for confirmation that you got married and obtained your green card in good faith. If there is evidence to suggest that your marriage was solely for the purposes of gaining entry to the United States, then your Form I-751 application may be denied – and you could be at risk for removal. As a result, this is a process that needs to be approached cautiously, and it is a process that is generally best handled by an experienced immigration attorney.
5. Getting Divorced After Permanent 10 Year Green Card
If you have already removed the conditions on your green card or your marriage was 2 years or older when you applied for one, then you probably hold a permanent green card (usually valid for 10 years). If you get divorced after receiving a permanent green card, the USCIS has no reason to scrutinize you. However, when you apply for citizenship in the future, your immigration history will be reviewed once more. More on that below.
6. Applying for U.S. Citizenship After a Divorce
Assuming you got married in good faith and not simply as a means to gain entry into the United States, then the greatest impact of your divorce may be delaying your eligibility for U.S. citizenship. If you are married to a U.S. citizen (not a green card holder), then you are eligible to apply for citizenship after just three years of residing in the United States. However, if you are not married to a U.S. citizen, then you must wait five years before applying for citizenship (using Form N-400, Application for Naturalization).
When you file N-400, USCIS will review your immigration history. If you got divorced before you filed Form I-751 (if applicable), this includes any information relating to your marriage. However, regardless of when you got divorced, you will likely be asked to submit additional evidence to prove that you got married in good faith. Since failing to provide this evidence could result in denial of your application for citizenship – and potentially lead to removal – it will be especially important to work with an experienced immigration attorney during the citizenship application process.
If you are contemplating a divorce and want to discuss the immigration-related consequences of ending your marriage with an experienced immigration attorney, schedule a consult today.
*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.