Immigration Status and Divorce
Some immigrants obtain their green card status through marriage. Here’s everything you need to know about how divorce affects immigration status.
Upon moving to the United States with a spouse, immigrants are issued a “conditional” green card that is valid for two years. A Form I-751 must be jointly filed (including both spouses) in order to replace this temporary green card with a permanent one. If divorced within the two-year time frame, immigrants can still become U.S. citizens as long as they take certain steps that would have otherwise been completed by a spouse.
Related: Immigration for Women to the United States
Immigration Divorce Before 2 Years
Living in the United States as a result of marriage can qualify a person to have their first “conditional” green card. This card is valid for two years and needs to be traded in for a permanent green card if one wants to continue legally living in the United States. To gain a permanent green card, a person must file a Form I-751, or Petition to Remove the Conditions of Residence. Under most circumstances, this form requires the signature of both the party requesting a permanent green card and their United States citizen spouse. Once signed, this form must be mailed to the United States Citizenship and Immigration Services (USCIS). There is a 90-day window prior to the two-year anniversary of the conditional green card being issued in which Form I-751 must be submitted.
In some cases, a divorce or marriage annulment can take place prior to the two years required for a permanent green card. This can make filing for a Form I-751 with a United States citizen spouse impossible. If such is the case, the party desiring U.S. residence can include a request for a waiver of the joint filing requirement alongside the I-751 form. Successful waivers are typically based on:
- Divorce following a good-faith marriage
- Any sort of abuse or harm being done by an American spouse during the course of an otherwise good-faith marriage
- Conditions of extreme hardship that would affect the immigrant party if he or she were to return to their home country
How does one file an I-751 form with a divorce waiver?
To file a Form I-751 with a divorce waiver, the filing party must fully complete and submit a signed petition along with:
- A filing fee
- A copy of a resident card (featuring both sides of the card)
- A copy of either evidence stating divorce proceedings are in progress or a divorce decree finalizing the divorce
- Proof that the marriage was a good-faith marriage; forms of proof can vary
- Evidence pertaining to different circumstances that led to the termination of the marriage, demonstrating the filing party was at fault
What does filing an I-751 do for immigration status?
After having filed an I-751 form, United States Citizenship and Immigration Services (USCIS) will issue a receipt notice pertaining to Form I-797 that extends conditional resident status for one year. The I-797 form will act as the immigrant’s green card once their conditional card expires, thus allowing the party to further their residence and work in the United States. This form will also allow the party to travel outside of the country if desired or necessary.
Contact Us
If you have any more questions about how divorce affects immigration status, contact us. Get your free consultation with one of our experienced immigration attorneys today!