A divorce can be a devastating life event to say the least. But, for a green card holder, divorce may introduce new challenges to their status in the US. In particular, if an immigrant received his green card through marriage, divorce may pose a serious risk to his permanent resident status. Indeed, immigration laws make it clear that only legitimate marriages qualify a foreign national for a green card. The divorce may cast doubt as to the legitimacy of the marriage and result in a finding of marriage fraud, subjecting the foreign national to deportation. However, legitimate marriages also fall apart, but it is important to understand the ways in which a divorce can affect your residency status.
Renewing Your Green Card After Divorce
Most green card holders will remain unaffected by a divorce. If you hold a 10-year green card, renewing the green card after a divorce will not be problematic. Simply, file Form I-90, Application to Replace Permanent Resident Card, and no questions asked. In fact, you can submit documentation to change your name after a divorce with the I-90.
Divorcing During the Conditional Residency Period
If you received your green card through marriage, and still hold a 2-year conditional green card, a divorce may pose significant risk to your residency. Normally, at the end of the conditional residency period, the couple must file a joint petition to remove conditions.
By contrast, if you have divorce before the end of the conditional residency period, you will have to file alone to have conditions removed. This will require a waiver of the joint filing requirement. Additionally, this almost always results in an inquiry into the legitimacy of the marriage. In other words, USCIS will look into the possibility that you entered into a “sham marriage” to fraudulently obtain your green card. Therefore, the conditional resident will want to provide additionally evidence proving the legitimacy of the marriage.
If you have a final order of divorce, you can file the petition to have conditions removed, asking for a waiver of the joint filing requirement, at any time before the end of your conditional residency period. That is, there is no need to wait until 90 days prior to the end of the conditional residency period. However, you will also need to submit evidence showing that the divorce was not due to any fault of yours. Such evidence includes, a divorce decree citing irreconcilable differences, evidence that fault lies with the ex-spouse (e.g., adultery), attempts to reconcile (e.g., marriage counseling). This list is not exhaustive, and an experienced immigration lawyer can assist with gathering the appropriate evidence to support your case.
If your divorce is pending and not yet final at the end of the conditional residency period, you can still file the waiver of the joint filing requirement, but the government will issue a Request for Evidence (“RFE”) for a copy of the divorce decree. You will need to respond to the government’s RFE with the final divorce decree for USCIS to process your request.
Cases of Abuse
If your spouse has subjected you or your child to violence or abuse, you may bypass the divorce requirement altogether. In cases, you may petition for the removal of conditions, asking for a waiver based upon abuse/battery. Keep in mind, you will need to provide documentation of the abuse to USCIS to qualify.
Derivative Applicants & Divorce
If you are the spouse of someone who has been sponsored for permanent residency and the government has not yet approved the application, a divorce dissolves the relationship that qualified you as a derivative applicant. In other words, you are no longer eligible for a green card through your marriage to the primary applicant. By contrast, if you have already been approved for a green card, USCIS generally has no valid reason to scrutinize your marital status.
For example, John’s employer petitions for John’s green card and includes Julie, his wife, as a derivative applicant. The petition is approved, John and Julie apply for their permanent resident card. If John and Julie divorce prior to the green card approval, Julie no longer qualifies for a green card. However, if John and Julie divorce after USCIS approves their applications, Julie should not worry about her divorce affecting her status as a permanent residence.
For a detailed analysis of your case and the effects of divorce on your immigration status, contact an experienced immigration lawyer to answer your questions.