The lawyers at Davis & Associates explain how getting divorced after receiving a green card can impact a person’s immigration status or their rights and obligations.
Generally, the impact a divorce has on a person’s immigration status depends on what stage of the process that person is in. You’ll have a different outcome if you:
- Divorce after applying, but before receiving a green card
- Divorce after receiving a conditional green card
- Divorce after removing conditions from your green card
Here’s a closer look at each.
Divorce After a Green Card Application, but Before Green Card Approval
If you divorce your spouse before your application for a green card has been approved by the U.S. government, your immigration process stops. The divorce essentially dissolves the relationship that made you eligible for a green card – and because you and your spouse have split up, you are no longer eligible and cannot continue the process.
Even if USCIS has already approved your immigrant petition, you lose your eligibility for a green card if one has not been issued to you yet.
However, there may be other ways for you to obtain a green card in the United States. Because your green card allows you to live and work permanently in the United States, it certainly makes sense to explore other avenues that can gain you lawful permanent residency. Although a divorce before your green card is approved will remove your ability to get a green card through marriage, you may still be able to get one in one of the following categories:
- Other family relationships
- VAWA self-petitioners
- As a special immigrant
- Through asylee or refugee status
- Through other categories
- Through registry
Does Divorce Affect a Green Card With Conditions?
If you have been married for less than two years and still have conditions on your green card, your immigration process may be affected. You’ll have to file Form I-751 with a waiver for the joint filing requirement – and you’ll have to show U.S. Citizenship and Immigration Services that you entered your marriage in good faith. It can be difficult to prove that you entered the marriage in good faith if you divorce before petitioning the U.S. government to remove the conditions on your green card. For this reason, many people choose to work with a family immigration lawyer who understands the impact a divorce can have on the immigration process at this stage.
Note: During the 90 days prior to the expiration of the green card, the permanent resident must file an application to remove the conditions (Form I-751, Petition to Remove the Conditions on Residence) as well as supplemental evidence to prove the bona fides of the marriage. This application should be filed jointly with the spouse through which the residency was obtained. In cases of divorce, the green card holder cannot file jointly and must file with a waiver request. Your immigration attorney can help you with the waiver request.
The bottom line is that USCIS is always on the lookout for people who obtain green cards fraudulently. Your whole case file will be up for review, and you may need to provide USCIS with evidence that you were engaged in a bona fide marriage – and that you didn’t only marry your spouse so you could gain an immigration benefit. That can be difficult without your former spouse’s cooperation.
What Kind Of Evidence Can You Provide?
If USCIS wants more evidence that you were engaged in a bona fide marriage, your attorney can help you determine what type of evidence will be useful in your case. You may want to share:
- Proof that you combined your finances, such as joint bank statements, titles or deeds for property you owned jointly, life insurance policies that listed both of you as beneficiaries prior to your divorce, or joint credit card statements that you had before the split
- Proof that you and your ex-spouse lived together, such as mortgage or lease documents that have both of your names and signatures on them, property deeds, copies of documents with both your names and addresses on them (such as driver’s licenses and joint bank statements), or letters from family members, friends and employers that vouch for the fact that you were a genuine couple
- Proof that you have children together, such as birth certificates that show both of your names, adoption certificates, or even school or medical records that list both your names
- Proof that you did “married people things” with each other, such as wedding photos, pictures of you together at parties or events, vacation itineraries and photos together, letters or emails that you sent each other, or even receipts from gifts that you purchased for each other during your marriage
Who Can File A Waiver Request Without A Spouse?
USCIS allows some people to file Form I-751 without a spouse’s cooperation – but only if that person requests and is approved for a waiver of the joint filing requirement. You may be able to apply for a waiver if:
- You have been battered or abused by your U.S. citizen spouse
- You would be subjected to extreme hardship if you returned to your home country
- Your spouse has died
- You have divorced
You do not have to have suffered battery or abuse at your spouse’s hands to apply for this waiver. It is available to people who are divorced.
It’s important to note that the Form I-751 waiver is only available to conditional residents. If you haven’t gotten a temporary green card through your marriage, you cannot apply for this waiver. You may have an alternate solution, though: You could be eligible to self-petition for a green card by filing Form I-360, which is authorized under the Violence Against Women Act.
Your immigration attorney can give you case-specific legal guidance if this petition applies to your situation – but because every case is different, it’s important that you speak with an immigration lawyer about your divorce and what caused it.
How Divorce Affects Green Card Holders With 10-Year Green Cards
Green card holders are usually unaffected by a divorce when they file another application or petition with U.S. Citizenship and Immigration Services if they are already a lawful permanent resident with a 10-year green card. There is usually no reason for USCIS to reevaluate your petition after a divorce.
In fact, green card holders can change their name on the document at the same time they renew or replace it. (Or they can file to change the name even if the card is still valid and in good condition to have consistent legal documents with their new legal name).
To do this, the green card holder must show legal proof, like a divorce decree, to prove they need to change their name on the green card. This can be done by filling out the name change on Form I-90 and submitting a copy of the legal name change document.
Can You Change Your Name On A Green Card Without Penalties After Divorce?
It’s usually a simple matter to change your name on your green card after a divorce. If you’ve legally changed your name, which will be outlined in your divorce decree, you can simply update your green card by filing Form I-90, Application to Replace Permanent Resident Card. You’ll have to provide some evidence that shows your name change, such as your divorce decree, before USCIS will issue your new green card with your new name.
Divorce Can Also Impact When A Lawful Permanent Resident Can Apply For Naturalization
If you intend to file for naturalization using Form N-400, Application for Naturalization, based on your marriage to a U.S. citizen, a divorce can impact your eligibility. Even if you were married for more than three years, which is the minimum time required, you must continue to be married at the time of your naturalization and you must have lived with your spouse for the three years prior to filing your N-400 application.
What If You’ve Been a Permanent Resident for 5 Years?
In some cases, people seeking naturalization are eligible based on spending five years as a permanent resident of the United States. That’s because divorce doesn’t affect your ability to file as a permanent resident and current green card holder.
Will USCIS Review Your Case During Naturalization If You’ve Divorced?
A divorce will trigger a complete review of your immigration file if you apply for naturalization. USCIS officials will look for indications that you fraudulently obtained your green card – and if that happens, you may have to provide additional evidence to support your claim to eligibility.
Generally, USCIS officials will ask a few questions about the marriage during the naturalization interview; in some cases, they ask for additional supporting evidence that proves you were engaged in a bona fide marriage (and that you didn’t only get married to obtain an immigration benefit).
Some of the questions USCIS may ask during a naturalization interview after divorce may be very personal. The USCIS official interviewing you may ask what led to the breakdown of your marriage, who initiated the divorce proceedings or even what your day-to-day life was like during your marriage.
It’s important that you answer honestly and candidly. You should also provide any supporting documentation that the USCIS interviewer asks you to provide quickly to avoid any delays in processing your application.
Other Categories That You May Qualify for a Green Card Under
If you don’t qualify for a green card because you divorced your spouse before your green card was approved by USCIS, you may still qualify under one of the following categories. If you believe you qualify, you may wish to speak with an attorney who can help you.
If you’re an unmarried child under the age of 21 of a U.S. citizen, or if you’re the parent of a U.S. citizen who is at least 21 years old, you could be eligible as an immediate relative of a U.S. citizen.
Additionally, you may qualify if you’re the unmarried son or daughter of a U.S. citizen when you’re 21 or older, the married child of a U.S. citizen, or sibling of a U.S. citizen who’s at least 21 years old.
You may also qualify for a green card if you’re related to a lawful permanent resident – but you must be the unmarried child of the lawful permanent resident to qualify.
If you are the abused spouse of a U.S. citizen or lawful permanent resident, the abused parent of a U.S. citizen, or an abused child who is unmarried and under the age of 21, you may be able to petition the U.S. government for your own green card.
Related: 6 ways to stop deportation
You may be able to apply for a green card as an immigrant worker, a physician, or an immigrant investor. This is a special category for people who fall into “preference” categories, which means some people are more preferred candidates for green cards.
If you have an extraordinary ability in the sciences, arts, education, business, or athletics, you are an outstanding professor or researcher, or you are a multinational manager of executive who meets certain criteria, you’re a first-preference immigrant worker.
If you’re a member of a profession that requires an advanced degree, you have exceptional ability in the sciences, arts or business, or you’re seeking a national interest waiver, you may be a second-preference immigrant worker.
Finally, if you’re a skilled worker performing a job that requires a minimum of two years of training or work experience, a professional performing a job that requires at least a U.S. bachelor’s degree or foreign equivalent (and you’re a member of the profession), or an unskilled worker performing unskilled labor that requires less than two years of training or experience, you may qualify as a third-preference immigrant worker.
If you’re a physician who will work in a designated underserved area for a specific period of time (and you meet certain eligibility requirements, you may also qualify for an employment-based green card. Likewise, if you have invested or you’re actively involved in the process of investing at least $1.8 million (or $900,000 in a targeted employment area) in a new commercial enterprise that will create at least 10 full-time positions for qualifying employees, you may qualify for an employment-based green card.
Some people qualify for green cards because they’re considered “special immigrants.” Special immigrants are typically:
- Religious workers
- Special immigrant juveniles, who are minors who need the protection of a juvenile court due to abuse, abandonment or neglect by a parent
- People who were Afghan or Iraqi translators or interpreters for the U.S. government, or were employed for the U.S. government or International Security Assistance Force
- International broadcasters
- Employees of international organizations or family members or NATO-6 employees or family members
These categories may not apply to you – particularly if you only came to the U.S. to marry your now-former spouse.
If you were admitted to the United States at least one year ago as a refugee or asylee, you may qualify for a green card, regardless of your marital status.
Refugees are those who are granted permission to come to the U.S. before arrival at a port of entry; asylees are those who ask for the United States’ protection while already inside the country.
There are a few specific categories that you may qualify for if you cannot get a green card because you divorced your spouse. You may be eligible to apply under:
- Liberian Refugee Immigration Fairness, but only if you’re a Liberian national who’s been continuously present in the U.S. since November 20, 2014, or you are the child under the age of 21, or unmarried son or daughter over the age of 21 of a qualifying Liberian national.
- Diversity Immigrant Visa Program, but only if you were selected for a diversity visa in the Department of State’s diversity visa lottery.
- Cuban Adjustment Act, but only if you’re a Cuban native or citizen, or you’re the spouse or child of a Cuban native or citizen.
- Dependent status under the HRIFA, but only if you’re the spouse or child (in your case, you must be the child) of a lawful permanent resident who received a green card based on the Haitian Refugee Immigration Fairness Act
- Lautenberg parolee
- Indochinese Parole Adjustment Act of 2000, but only if you are a native citizen of Vietnam, Kampuchea or Laos who was paroled into the United States on or before October 1, 1997 from Vietnam under the Orderly Departure Program, a refugee camp in East Asia, or a displaced person camp administered by UNHCR in Thailand
- American Indian born in Canada, but only if you have at least 50 percent American Indian heritage, were born in Canada, and maintain a principal residence in the United States
- Person born in the U.S. to a foreign diplomat
- Section 13 diplomat who is unable to return home
If you have resided continuously in the United States since before January 1, 1972, you may be eligible to register for a green card.
If you’re unable to provide supporting documentation that shows USCIS you were involved in a bona fide marriage after your naturalization interview, the agency can deny your application. Supporting evidence isn’t always necessary, though – you may simply have to answer a few questions during your interview.
Parties who are interested in applying for, renewing, changing their name or removing conditions on the green card, or even applying for their naturalization can request a free consultation today.
Related: What is a bona fide marriage?
What Should You Do While Your Green Card Application is Pending?
After your attorney submits your green card application, you can check the status of your case by using your I-485 receipt number. Simply visit the USCIS Case Status Online page and enter your information to look up your case status. You can also call the USCIS Contact Center or speak with your attorney about the status of your case.
If you need to leave the U.S. temporarily while your case is pending, talk to your attorney about filing the appropriate forms – you don’t want to put your green card status at risk.