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Proudly Serving Dallas, FT.Worth, San Antonio, Houston.
OFFICE 110 Broadway St. Ste 370, San Antonio, TX 78205
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.
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.
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.
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.
Suppose your marriage ends, and you have already submitted your immigrant visa or green card application. In that case, it is still necessary for you to be interviewed by the USCIS before your visa is approved. In that case, you cannot continue the immigration process because your marriage made you eligible to file the visa petition, and you do not have legal status.
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.
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.
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.
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.