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What Happens to Immigration Status When You Get Divorced?

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September 28, 2022

Key Takeaways

Getting divorced may affect your immigration status, depending on what type of marriage green card you have. Divorce won’t affect the status of people who have permanent green cards, but it can delay their application for naturalization. If you have a conditional green card and you get divorced, it may be more difficult to get a permanent green card.

This article discusses how divorce can affect immigration status and how people with conditional green cards can still apply to become permanent U.S. residents, even after their marriage ends.

Table of Contents

What Are the Different Types of Marriage Green Cards?

There are two types of marriage green cards under U.S. immigration law. U.S. immigration authorities differentiate based on how long you and your spouse have been married. They do this to ensure your marriage is legitimate and not for immigration benefits.

Permanent Green Card

Non-citizens who have been married to a U.S. citizen for at least two years can file a green card application and receive a permanent green card. This is also known as a 10-year green card. Once you have a permanent green card, it is simple to renew it. You don’t have to prove your marriage’s legitimacy during the renewal process.

Conditional Green Card

Immigrants who have been married for less than two years can get a conditional green card. This green card only lasts for two years. After the two-year period, the lawful permanent resident who has legal status in the United States can apply to “remove conditions” and get a permanent resident card.

This waiting period exists because U.S. Citizenship and Immigration Services (USCIS) wants to ensure the marriage is “bona fide” (real) and not for immigration benefits.

How Does Divorce Affect Green Card Status?

Getting a divorce will not affect your permanent resident status. You need to renew your permanent green card every 10 years by filing Form I-90: Application to Replace Permanent Resident Card. But there are no questions on this form about your marital or relationship status. Your marriage status has no effect on your green card status after you get a 10-year green card.

That said, if you have a conditional green card, you will need to file a waiver when renewing your green card. We’ll cover the waiver process in a later section.

If you changed your name after your divorce, such as changing your last name back to your maiden name, you could update this on your green card. You just need to indicate the name change on Form I-90 and provide a copy of a legal document that proves this name change, such as a divorce decree.

Can You Become a U.S. Citizen After Divorce?

Anyone with a permanent green card can apply for naturalization to become a U.S. citizen after having a green card for five years. You file Form N-400: Application for Naturalization to start the application process.

However, this waiting period is shorter for people with marriage green cards. In this case, you can apply for naturalization after only three years. To do so, you need to stay married while your naturalization petition is pending.

If you finalize divorce proceedings before USCIS approves your naturalization petition, you are no longer eligible for the shortened three-year wait period. You must withdraw your naturalization petition and wait to apply after the five-year period.

How Does Divorce Affect a Conditional Green Card?

Usually, you will need to prove you are still married to receive a permanent green card after two years as a conditional permanent resident. You and your spouse together must file Form I-751: Petition to Remove Conditions. This is called a joint petition because both spouses must fill it out together. You must apply before the conditional residence status expiration date or you could face deportation or removal proceedings.

Because this is a joint form, if you are no longer married before converting to a permanent green card, the process becomes more complicated. USCIS may doubt that your marriage was genuine because it did not last. You must prove you did not commit marriage fraud to get a green card. You will have to request a waiver of the joint filing requirement. You will still have to file Form I-751, but the waiver will allow you to file it on your own.

If you request a waiver for the I-751 petition, you may want to consult an immigration lawyer. USCIS may be skeptical of your marriage, and a lawyer could help prove your case.

Have immigration questions? Get them answered by independent attorneys for $24/month with our Ask an Attorney program.

How To Waive the Joint Filing Requirement

If you have already finalized your divorce or annulment, you cannot jointly file Form I-751 for a permanent green card. In this case, you need to request a waiver of the joint filing requirement.

You can do this by indicating your request on Part 3: Basis for Petition of Form I-751. You will mark the box that contains the relevant reason for why you cannot file jointly with your spouse and attach additional evidence as specified in the form instructions from USCIS.

You will need to prove your marriage was genuine or “in good faith,” although it did not last. Additionally, if applicable, it may help to prove that you would face extreme hardship if you returned to your home country.

You should also provide evidence if you faced spousal or child abuse perpetuated by the U.S. citizen spouse. Evidence could include copies of reports or official records such as court records that state you faced extreme cruelty, legal documents related to an order of protection against the abuser, evidence you sought safety from a shelter, or photographs of injuries. It could also include your divorce decree if your marriage ended due to extreme cruelty or physical abuse.

By providing evidence that you cannot return home or that your spouse caused the divorce, USCIS may be more sympathetic to your case.

How To Prove the Marriage Was in Good Faith

After you submit your waiver request, USCIS may ask for additional evidence that your marriage was “in good faith.” It is critical to prove your marriage was not for immigration benefits. If court records show that your marriage was “in bad faith,” you are ineligible for any immigration status in the future.

A divorce usually ends with an agreement between spouses, a marriage settlement agreement, or a judge’s order after a hearing called a divorce decree. USCIS will require a copy of your agreement or divorce decree. If the decree states that your marriage was “in bad faith,” your chances of successfully receiving a waiver are slim.

It is best to provide concrete evidence to USCIS that your marriage was real. You may want to provide joint financial records, proof you lived with your previous spouse, or evidence that you pursued marriage counseling. If applicable, you may also want to prove that you and your spouse had children together.  

You will also have to explain why your marriage ended. If you and your partner had irreconcilable disagreements, you should detail them. For example, perhaps one partner wanted to have children and the other did not. By proving your marriage was in good faith, USCIS will not suspect you of committing fraud to get a conditional green card. They will be more willing to renew your green card so that you can maintain your permanent resident status.

Conclusion

Applying for a permanent green card after divorce can be complicated, but help is available. If you are eligible, our free web app will walk you through the green card process and help you prepare and file your application with the U.S. government. If our app isn’t a good fit, we may be able to refer you to an experienced immigration attorney to help. Click "Get Started" to see how we can help make your American dream come true!

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