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What Are the Two Primary Types of Marriage-Based Green Cards?
Two main types of marriage-based green cards play a role in determining how divorce impacts your immigration status. These forms of lawful immigrant status include permanent 10-year green cards and conditional two-year green cards.
A 10-year green card is the identification document that establishes its holder’s lawful permanent residence in the United States of America. The timing of a divorce case impacts whether a permanent green card status is affected.
The conditional green card is reserved for those who have been married for fewer than two years when “approved” for a lawful resident card. The spouses of the green card applicant must either be the green card holders themselves or have United States citizenship.
Does Divorce or Legal Separation Affect a Person’s Permanent Resident Status?
How your immigration status is affected by a divorce depends on several factors, including the US spouse’s status, the immigration benefits to the foreign-born national, the quality of the documents demonstrating the relationship, USCIS discretion, and how and when those benefits were received.
In many cases, getting a divorce will not negatively impact your legal permanent resident status. Those with lawful permanent residence must renew their permanent green cards every decade by filing form I-90. There are no questions on form I-90 about relationship or marital status. However, there are other factors.
Those who divorce and still have a conditional green card face some challenges. They must file a waiver of the joint filing requirement when renewing their green card. Normally, both spouses file together.
What is the Difference Between Divorce and Separation for Green Card Holders?
Depending on the circumstances of your marriage and your desire to fix things in your relationship, couples may wish to consider getting a legal separation before filing for divorce.
The primary difference between divorce and legal separation is that it is much simpler to reverse a legal separation than to reverse a divorce. Legal separations essentially involve pausing marriages, allowing both parties to live separately and independently from one another. They can use this time living separately to consider whether their marriage is worth saving. As part of the separation process, they may seek psychological counseling apart and/or together.
While you will still need to enter a courtroom to file for a legal separation, it is still possible to have these decisions reversed and later reconcile with your spouse. Doing so would have no impact on your immigration status. The same cannot be said for those going through divorce proceedings, who may feel real impacts depending on their conditional or permanent resident status.
What if You Have a Conditional Two-Year Green Card?
It’s ‘generally’ considered less a of a risk to get a divorce if you have a 10-year green card than it is if you have a two-year conditional green card.
Those granted two-year conditional green cards are typically married couples who have only been together for a shorter period of time. The two-year conditional time frame allows United States Citizenship and Immigration Services (USCIS) time to review your case and determine whether it believes the marriage is legitimate or fraudulent as a matter of immigration law.
If you have conditional residence and your marriage ends due to a divorce, you could potentially lose your conditional residence status, rendering you ‘deportable’ from the United States. That is, unless you seem qualified to file for a self petition or waiver of the joint filing requirement.
Individuals with conditional green cards acquired through marriage are limited to two years of lawful permanent residence in the United States. In order to become a permanent resident, the individual must prove that they entered the marriage in good faith after two years by filing a “joint petition” to remove conditions with their spouse. If you are going through a divorce, it may be complicating and pointless to file a joint petition.
What Happens if the Divorce Occurs Before Permanent Residence is Granted?
If you and your spouse get divorced after the foreign national spouse has applied for a green card but before USCIS has approved the petition, you can no longer acquire a green card. The entire process may come to a halt if you are getting a divorce, as well. The foreign national spouse may be forced to return to their home country, as they no longer qualify for a marriage-based visa. More so, forgetting to preserve documentation of your first marriage and/or ending the relationship on bad terms can complicate any petition by a future spouse.
Even if USCIS approves your green card petition but has not yet issued the green card, you cannot remain in the US. You must have received a green card for it to be considered valid.
A visa petition may have to be processed outside of the United States. Some who depart for such reasons can be barred from lawful permanent residence for ten years, perhaps longer.
Can You Waive the Joint Filing Requirement in Instances of Domestic Abuse?
If you face spousal abuse or were witness to child abuse perpetrated by a US citizen spouse, you must present evidence to the court. Evidence may include court records, protection orders, evidence that you had to stay at a shelter, or photographs of your injuries. If you divorced due to experiencing extreme cruelty or physical abuse, your divorce decree may also work as evidence depending upon the divorce petition and order.
By providing this evidence of domestic violence and/or hardship USCIS may be sympathetic to your case and waive the need for filing jointly with your spouse.
Will You Need to Prove That Your Marriage Was Real?
USCIS may request additional evidence to prove that your marriage was real and entered in good faith. You need to establish that you did not get married solely for the immigration benefits. Fraudulent marriages can be met with harsh unforgiving consequences as a matter of law and discretion.
If you can, attempt to provide concrete evidence to USCIS that your marriage was, in fact, real and legitimate. Evidence that you may consider submitting could include proof of your life together prior to and after your vows, joint financial records, and records of marriage counseling.
You will also need to explain in detail to USCIS why the marriage has ended. If you prove that your marriage was entered in good faith, the US government may not suspect you of committing fraud.
Does Divorce Affect Your Pathway to Citizenship?
If you are married to a United States citizen, you only need to wait three years after becoming a green card holder before you can apply for citizenship yourself. However, if you file for divorce before you apply for citizenship, then you may have to wait the full five years that unmarried green card holders must wait.
What is the Legal Impact on the U.S. Citizen Spouse?
While most of the concerns associated with divorce in this context relate to the immigrant spouse, that does not mean that the US citizen spouse is unaffected by divorce proceedings with a foreign national.
When a U.S. citizen sponsors their foreign relative, they do so under the agreement that they take financial responsibility for the support of the sponsored individual. This obligation does not terminate just because the marriage has ended. U.S. citizens may find themselves legally responsible for the financial support of noncitizen spouses for up to 10 years. However, divorce laws may require a more indefinite period depending upon the situation.
Contact Us to Schedule an In-Depth Strategy Session Today
The Law Office of Kevin Dixler has extensive experience representing clients in complex immigration law cases, including those going through a divorce and worried about their immigrant status. We can provide effective and complete legal assistance to you during this difficult time.
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