Key Takeaways

  • Divorce and Green Card Status: Divorce does not immediately invalidate a green card, but it may impact those with conditional residency.
  • Conditional Green Card Holders: If divorced, they must file Form I-751 with a waiver and prove the marriage was genuine.
  • Impact on Citizenship: Divorce may extend the naturalization waiting period from 3 to 5 years.
  • Extreme Hardship & Abuse Waivers: Certain cases may qualify for waivers if hardship or abuse is demonstrated.
  • Divorce During Green Card Processing: Can complicate or halt the process if based on marriage.
  • Legal Separation vs. Divorce: In some cases, legal separation may still allow an immigrant to apply for a permanent green card.
  • Spousal Allegations of Bad Faith: A US citizen's claim of bad faith marriage can complicate green card approval.
  • Evidence to Support a Good Faith Marriage: Includes joint finances, property ownership, children, and social proof.
  • Sponsoring Family After Divorce: A permanent green card holder can still sponsor family members, but conditional residents face limitations.
  • Options After Divorce: Consulting an immigration attorney is crucial to navigating divorce-related immigration challenges.

The divorce process is a challenging end to any marriage. And if your relationship was based on a marriage green card, things can spiral into complex immigration issues.

Perhaps you're wondering how a conditional green card divorce can affect your lawful U. residence. Will you continue being a US citizen if your marriage ends in divorce? What will be your smartest path to regaining US residency?

The type of your marriage green card is the main determinant of answers to these questions. Let's dive deeper to unravel the riddles.

Learn How Divorce Impacts Your Green Card Status

When you marry a U.S. citizen, you can obtain either a permanent green card that's renewable after 10 years or a conditional green card. You'll need to apply for a conditional green card if your marriage is less than 2 years old at the time of getting the document.

Two years after arriving in the US, you can become a permanent resident so long as you have proof that your marriage still exists. You must apply for a joint petition to remove the conditions by filing Form I-751, signing, and mailing it to USCIS (the body that manages citizenship and immigration services) within 90 days before the two years end (joint filing). You might be interested in marriage green card timeline and marriage-based green card documents for in-depth understanding.

Also, be sure you understand the green card marriage interview questions and green card rfe before proceeding with the application. You may also check out marrying a us citizen while on h1b visa.

But what if your green card marriage ends in divorce before the conditional residence expires, and you wish to continue being a US citizen? Joint filing of the form I-751 will be impossible. While you still have to submit the petition to secure lawful permanent resident status, you need to request the authority to waive the joint filing requirement. The waivers that will probably apply to your case are based on the following:

  • Divorce after marrying in good faith
  • Extreme hardship if you go back to your country
  • Abuse from US partner in good-faith marriage

Divorce and Permanent Green Card

If you are a legal permanent resident with a green card, your marital status doesn't impact your immigration status. That means you can still apply for renewal of your green card even if you are divorced- you will not have to contend with questions about your marital status when filing Form I-90 (Application for replacement of green card).

You can even change your name back to your maiden name if the divorce is legal. Just ensure you have included a copy of the final divorce decree (or any other document that proves the name change) during the green card renewal process. 

Divorce and a Conditional Green Card

If you seek to divorce your US spouse, perhaps you are wondering whether your conditional green card will cease being valid. The good news is that the divorce will not automatically terminate the document. And you can file Form I-751 to lift the conditions at any time, even if the conditional green card's expiration date isn't near.

But for the application to sail through, you should include a "waiver" request proving that your marriage before the divorce was in good faith and not a way of circumventing the immigration requirements. Here are examples of proofs of marriage documents:

  • Living together
  • Joint financial expenses
  • Children's birth certificate
  • Marriage counselling

You should also provide a written explanation as to why the marriage ended. The reasons might range from irreconcilable differences (such as getting children) to adultery, domestic abuse, and extreme hardship. Include copies of divorce documents and court records proving your claims.

An experienced immigration lawyer can help you prepare formal documents detailing reasons for divorce. If USCIS decides that the marriage ended because of fault on your part, they will likely deny your 1-751 petition and the condition removal proceedings will not continue. 

Understanding Waivers for Conditional Green Card Holders

If you hold a conditional green card and divorce before obtaining permanent residency, you must file Form I-751 with a waiver of the joint filing requirement. The U.S. Citizenship and Immigration Services (USCIS) grants waivers under the following conditions:

  • Marriage was in good faith but ended in divorce – You must provide evidence that the relationship was genuine.
  • Extreme hardship – If you would face significant hardship if forced to leave the U.S.
  • Spouse’s abuse or extreme cruelty – If you were subjected to domestic violence.

To strengthen your case, you should submit documents such as joint leases, financial statements, affidavits from friends and family, and photos of your life together.

Removing Conditions When the Divorce Is Not final

If you have filed for divorce but still live with your partner, you don't have to wait until the divorce is final to file Form I-751 to petition to lift of the conditions. USCIS will extend your conditional residence status by a year if you prove that you and your partner have initiated the divorce process.

However, if you have already been divorced for more than two years, you cannot lift the conditions using this method. 

What Happens if Your Divorce is Delayed?

In some cases, a couple may be separated but not legally divorced when the time comes to file Form I-751. USCIS allows applicants to file individually while divorce proceedings are pending, but they may request additional proof that the divorce will be finalized. If your divorce is prolonged, USCIS may delay processing your application until the final decree is issued.

To minimize complications:

  • Provide court documents showing divorce proceedings are underway.
  • Submit a statement explaining the reasons for the delay.
  • Keep communication with USCIS open to provide updates as needed.

Removing Conditions When You are Separated but Not Divorced

In rare cases, filing for the petition is possible if you two are legally separated but not legally divorced. The USCIS can grant you permanent resident status if you prove "extreme hardship."

Divorcing During the Green Card Application Process

Terminating your marriage when applying for a green card can have potential consequences. The divorce can delay or even prevent the approval of your application for permanent resident status. Also, you may be unable to sponsor other family members for green cards in the future.

The USCIS scrutinizes immigration fraud thoroughly. They frown upon applicants who fail to disclose a divorce or fake marriage during the application process. 

What If Your Spouse Withdraws Sponsorship?

If your U.S. citizen or green card-holding spouse withdraws sponsorship before your green card is approved, your application will be denied. However, options may exist depending on your circumstances:

  • Self-Petition Under VAWA – If you experienced abuse during the marriage, you may qualify for a self-petition under the Violence Against Women Act (VAWA).
  • Employer Sponsorship – If you have a job that qualifies for employment-based immigration, you may be able to apply for a green card through an employer.
  • Asylum or Other Humanitarian Relief – If returning to your home country would put you in danger, you may qualify for asylum or other humanitarian programs.

If you find yourself in this situation, consult an immigration attorney to explore alternative paths to legal residency.

Why Divorce Can Threaten an Immigrant's Conditional Resident Status

As seen, for the immigrant to convert conditional residency into permanent residency, they must prove that the marriage:

  1. Wasn't a sham to secure a green card (it was in good faith)
  2. Was at least 2 years old after conditional green card approval

A conditional resident immigrant must remain married to a US citizen spouse to maintain conditional resident status. Otherwise, a divorce after a green card may terminate the status and lead to their deportation. Speak to your immigration lawyer for marriage for further advice. 

Special Cases: Divorce and K-1 Visa Holders

Individuals who entered the U.S. on a K-1 fiancé visa must marry their U.S. citizen fiancé within 90 days to apply for a green card. If a divorce occurs before the green card process is complete, they must either:

  • Leave the U.S. before their visa expires.
  • Apply for another visa category if eligible.

If a K-1 visa holder divorces after receiving a conditional green card, they must follow the same Form I-751 waiver process as other conditional residents.

The Problem in Showing Good Faith Marriage: Typical Divorce Petitions Allege Bad Faith

Normally, there are two outcomes to a divorce petition filed in court:

  • Marriage settlement agreement: The two parties agree on issues such as dividing assets, alimony, and child support
  • Divorce decree: If the parties don't agree, the matter proceeds to the court hearing, where the judge makes a final divorce decree

In proceedings involving an immigrant married to a US citizen, the latter can cite "bad faith" as grounds for parting ways - essentially swearing under oath that the union wasn't genuine.

And due to anger, they often forget the good times they had with the non-citizen and fail to consider immigration consequences for the foreign spouse. US citizens might even believe their partner married them just to get a green card.

The issue mostly crops up when the parties agree to settle the divorce instead of bringing it to a court hearing. Once the court decides the agreement is valid and records it, undoing the US citizen's claim becomes impossible - unless they are ready to be imprisoned for lying.

The problem may still arise even if the divorce proceeds to a court hearing before a judge. If the citizen can demonstrate allegations of bad faith, the judge's exact language in the divorce decree will determine the immigration matter's proceedings. The non-citizen forfeits all chances of becoming a US citizen if the decree cites bad faith as grounds for divorce.

The bottom line is that USCIS will need copies of the marital settlement or divorce decree when the non-citizen submits an I-751 application and when the green card expires. And they'll take note of bad faith as reasons for ending your marriage.

How Can a Conditional Resident Deal With Wrongful Allegations of Bad Faith in a Divorce Petition?

Did your US-citizen spouse give "a bad faith" reason and swear to it? The good news is that the allegation doesn't automatically become factual in the eyes of the law. 

However, it will be impossible for the alleging spouse to offer support when you seek to become a permanent US citizen green card holder. Supporting your green card renewal process will contradict their claim.

If you haven't finalized the divorce, it's recommendable to stay clear of marital settlement. Let the matter proceed to trial, forcing the alleging spouse to supply evidence that proves their allegations of bad faith. If they fail to do so, you'll escape the immigration issue. And that should be your goal.

It's crucial to document your life together from when you tied the knot to prove your US citizenship through marriage. Some of the documents that can help you prove the marriage's legitimacy include the following:

a. Engagement & Wedding

It's important to document pieces of evidence of your engagement and wedding. They include newspaper announcements, wedding invitations, and related expenses such as receipts of clergypersons, videographers, and the band. An original marriage certificate in the US is also crucial. 

b. Children you bore together in marriage

While having children born into the marriage isn't a requirement for validation of the union, they are excellent proof that you began life together. So providing their birth certificates shows you intended to stay together.

c. Joint property ownership

Do you jointly own or lease a property such as a home or real estate with your ex-spouse? Provide copies that have your name and your spouse's name. They include a deed, purchase contract, lease agreement, property tax bills, mortgage account statements, closing papers, and mortgage agreement.

Even if you don't own a property jointly, you can prove joint tenancy of a home. Documents such as repair records, utility bills, and homeowners association (HOA) bills can come to your rescue.

d. Photographs

Several shots of the married couple can be other vital pieces of evidence. For example, you may include pictures taken during social events and family functions such as weddings, traveling, and funeral—Pro tip: Handwrite the dates, names, and places on the back. 

e. Travel documents

Any travel record that shows that you vacationed together is useful, especially if you visit your spouse's family home. So provide relevant records such as passports, tickets, reservations, and hotel bills.

f. Financial records

Include documents demonstrating that you bought items together, took a joint loan, or shared equity. Examples include car titles, savings and checking accounts, tax returns, credit card statements, and other financial documents with the names of both you and your partner.

You must eventually provide the divorce document to USCIS when you file Form I-751 to become a permanent resident. Of course, you'll include a request from the authorities to waive the joint filing requirement.

If you are a conditional resident contending with bad-faith divorce allegations, contact an experienced immigration attorney immediately. They'll assist you to respond to the case well and follow the best options for remaining in the country.

The court may dismiss the petition if you can prove the allegations don't hold water. But if the judge finds the allegations true, the US government may deport you.

The Role of Divorce Decrees in Immigration Cases

USCIS reviews divorce decrees carefully when assessing green card eligibility. Certain divorce agreements may include statements regarding bad faith marriage, which can significantly impact immigration outcomes. If your former spouse alleges bad faith in the divorce documents, it may:

  • Raise red flags during USCIS review.
  • Lead to increased scrutiny when applying for a green card renewal or naturalization.
  • Result in denial of a green card removal request.

If your divorce decree contains unfavorable statements, work with an attorney to present additional evidence proving your marriage was genuine.

What if I File for Divorce After Getting My Permanent Resident Card?

If you've gained permanent residence through marriage, the impact of divorce can be significant. Divorce after getting permanent residency may force the non-resident spouse to leave the US The reason is that the residency is based on marriage, and the marriage isn't valid anymore.

The good news is that you can prevent this outcome in certain circumstances and ways. For example:

  • Obtain a divorce from another country
  • Prove that both of you entered into the marriage in good faith

But it's crucial to consult an immigration attorney to find the best route.

How Does Divorce Affect My Progress Toward U.S. Citizenship?

When marriage between a US citizen and a non-citizen spouse ends, the latter may experience a delay or halt in their progress toward becoming permanent residents. This is because divorce can affect the following:

  • The period the non-citizen green card holders spend staying in the country: If both partners were living in the US together when they divorced, the non-citizen partner would be forced to jet out of the country to keep their immigration status.
  • The ability of the non-citizen spouse to apply green card or other immigration benefits

It's advisable to seek professional guidance from an immigration attorney who understands US citizenship and immigration services. They will quickly help you navigate the quagmire.

Frequently Asked Questions

  1. Can I still apply for U.S. citizenship after divorce?
    Yes, but if you obtained your green card through marriage, your waiting period for naturalization may increase from 3 to 5 years.
  2. What if my divorce isn’t finalized when I apply to remove conditions?
    You can still file Form I-751 if you provide evidence that divorce proceedings are underway. USCIS may delay a decision until the divorce is finalized.
  3. Can I stay in the U.S. if my spouse withdraws my green card application?
    If your spouse withdraws sponsorship before approval, your application will be denied. However, alternative paths such as employer sponsorship, asylum, or VAWA may be available.
  4. How can I prove my marriage was in good faith?
    Evidence includes joint bank accounts, shared leases, children’s birth certificates, travel history, and affidavits from family and friends.
  5. Can I apply for a waiver if I was abused during my marriage?
    Yes. If you were subjected to abuse by your spouse, you may qualify for a waiver under the Violence Against Women Act (VAWA).
     

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