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Can A Divorce Affect Your Permanent Resident Status?
Complex relationships may eventually lead to a divorce or separation. Therefore, you may need clarification about your continuous stay in the United States (U.S.) after your marriage with a U.S. citizen or permanent resident ends.
Divorce and separation laws vary by state, so the USCIS will interpret your state’s laws when determining if your marriage has ended. The impact a divorce may have on your immigration status also depends on the type of green card you have.
Whether you are married to an individual with an employer-sponsored green card or have a conditional green card, an experienced immigration attorney at Andrew T. Thomas, Attorneys at Law, can provide you with guidance and the best possible approach to avoid a green card revocation.
What Happens to Your Immigration Status After Divorce?
Under U.S. immigration law, a permanent green card holder can renew their green card after the 1o year expiration period by filing Form I-90 (Application to Replace Permanent Resident Card), regardless of their marital status.
After the first green card application process and approval, individuals would not be required to attend another interview for a marriage green card. During the green card renewal, they can update their information with immigration services to reflect their maiden name.
A conditional green card is given to non-U.S. citizens whose marriage to a U.S. citizen is less than two years old. Individuals with conditional green cards must prove their marriage is genuine and still exists at the end of the two years to lift the conditions on their permanent residence status.
Therefore, a conditional resident whose marriage ends during or after the mandatory two-year period may encounter issues that may lead to the revocation of their status.
What Are the Criteria for Removing Conditions on a Green Card After Divorce?
To remove the conditions on a two-year conditional green card, you must file Form I-751, Petition to Remove Conditions of Residence, with USCIS. If the joint petition is successful, you will receive a ten-year green card.
Form I-751, Petition to Remove Conditions on Residence, can be filed any time after a divorce order (or annulment), even if you have yet to reach the conditional green card expiration date.
If divorced or separated individuals cannot get full cooperation from their former spouse, they can file Form I-751 with a waiver for the Joint Filing Requirement. To qualify for the waiver, you must show evidence that your marriage did not end on your account and that it was legitimate from the start.
Immigration officials commonly view a failed marriage within the conditional period as fraudulent. Therefore, having a seasoned immigration attorney representing you is crucial to avoiding problems caused by insufficient evidence.
What Circumstances May Lead to Revocation of Permanent Residence After Divorce?
A Divorce Between Primary and Derivative Applicants
Individuals married to green card holders sponsored by their employer are derivative beneficiaries covered under the same immigrant petition as their spouses. Therefore, a divorce before approval will make them ineligible to continue the application process.
If the divorce occurs after the green card approval, it will not affect the derivative beneficiary’s green card status unless it is a conditional green card. Primary beneficiaries of an employment-based visa who end their marriage can still continue the green card process.
A Divorce Before the Filing of Form I-130 (Petition for Alien Relative)
When a marriage ends before the filing of Form I-130, which is the Petition for Alien Relative, it can significantly complicate the immigration process. This form is essentially a request to the USCIS to recognize a foreign national as an immediate relative of a U.S. citizen or permanent resident. The approval of this form is a critical step toward obtaining an immigrant visa or green card.
Suppose you’ve already submitted your immigrant visa or green card application, and then your marriage ends. In that case, there are key issues to consider. While you will still be required to attend an interview with the USCIS, the dissolution of your marriage poses a significant challenge. This is because the very basis for your eligibility to file the visa petition was the marital relationship with a U.S. citizen or lawful permanent resident. A divorce before the approval of the I-130 petition means that you no longer have the qualifying relationship that initially made you eligible for the green card process.
In this scenario, the immigration process cannot continue as planned. The absence of the marital relationship upon which your petition was predicated effectively nullifies your legal status as a beneficiary. Hence, the USCIS cannot approve the petition for a green card or immigrant visa. It’s crucial to consult with an experienced immigration attorney who can help you explore potential legal avenues to secure your immigration status in the U.S. under such circumstances.
What Happens When the USCIS Revokes Your Green Card After Divorce?
If the United States Citizenship and Immigration Services (USCIS) believes you committed marriage fraud, they will revoke your permanent residence status and refer you to immigration court for deportation proceedings.
Marriage fraud is a criminal offense, and individuals found committing such acts to acquire immigration benefits may face a penalty of up to five years in jail, up to $250,000 in fines, or both fines and imprisonment. In addition, after deportation, they may find it difficult to return to the U.S.
It is also important to note that failure to notify the USCIS of your divorce is considered immigration fraud.
What Evidence Does the USCIS Require to Prove Good Faith?
To prove the validity of the marriage, you will need to provide joint bank statements, insurance policies, photos of both parties with their children or families, tax filings, and proof of trips together.
Those who are divorced must also provide a divorce decree before they can apply for the waiver. It is necessary to do so in order to avoid USCIS deciding the case as a joining petition.
Additional evidence showing that you tried to sustain the marriage, including proof of marriage counseling, will strengthen your case. You can also convince USCIS that the divorce was not your fault by presenting evidence of adultery, abuse, extreme hardship or cruelty, criminal behavior, and irreconcilable differences.
Individuals who have been abused by their citizen or permanent resident spouses or those whose children have been violently abused by them can bypass the divorce waiver. It is known as a VAWA (Violence Against Women Act) petition.
Can I Apply for a Waiver If I Get Divorced Before Removing Conditions on My Green Card?
Yes, you can still apply for a waiver if you get divorced before removing conditions on your green card. Conditional permanent residents have been granted residency based on marriage to a U.S. citizen or permanent resident. The green card will be valid for two years, and before the expiration of this time, the couple needs to jointly file Form I-751, Petition to Remove Conditions on Residence, to remove those conditions.
When the marriage ends in divorce, the conditional resident can apply for a waiver of the joint filing requirement. To successfully apply for the waiver, you will have to demonstrate that
- The marriage was entered into in good faith and not for the purpose of obtaining immigration benefits.
- The marriage has legally ended through divorce or annulment.
- The conditional resident would face extreme hardship if deported.
You will also need to provide the documents and evidence proving the marriage’s authenticity and the reason for its termination.
How Long After My Divorce Should I Inform USCIS?
It is essential to inform USCIS as soon as possible after your divorce is finalized. If you are nearing the time to file Form I-751 and your divorce is finalized, you should file the petition with the waiver request right away.
In some cases, couples submit Form I-751 jointly but subsequently get divorced while waiting for the USCIS’s decision. You need to notify USCIS of the change in circumstances and update your petition to request a waiver based on the divorce.
It is vital to be proactive and transparent with USCIS. Any delay or failure to inform them of changes in the marital status with the lawful permanent resident spouse might lead to complications in the immigration court proceedings or suspicions about the marriage’s authenticity, which can impact the outcome.
How Can a Divorce Affect the Naturalization Process?
A divorce could affect the eligibility of filing Form N-400 (Application for Naturalization), where the application is made by a legal permanent resident who has been married to a U.S. citizen for three years. Your marriage must still exist at the time of approval, and you must have lived with the U.S. citizen spouse for three years prior to applying.
The USCIS may review your immigration file again to determine if you entered the marriage in good faith. If you provide clear documentation proving the marriage’s validity, the USCIS will accept your application.
Individuals who have lived in the U.S. with lawful permanent resident status for five years can still file Form N-400.
Contact Andrew T. Thomas, Attorneys at Law Today!
Filing a divorce is a complicated process that could affect your immigration status in the U.S. If you are legally separated, you may still be able to continue with the green card process, depending on your jurisdiction’s legal definition of separation.
Andrew T. Thomas, Attorneys at Law, can provide more insight into how divorce affects your immigration status. As part of our immigration services, we will also answer all your green card FAQs, file all the legal paperwork, and assist you.
Schedule an appointment today to get assistance with your green card journey.
