Divorce and Immigration

Marrying an American citizen can be one of the easiest and quickest ways to obtain a green card. If the marriage is less than two years old at the time of the visa interview, the green card will be issued only on a conditional basis for two years. If at the end of the two years the couple can convince the USCIS that the marriage was not entered into for fraudulent purposes, the green card will then be issued permanently. Those two years can be agonizing for some who genuinely entered the marriage in good faith, but find that the relationship is crumbling, and an inevitable divorce is on the horizon. In order to obtain permanent residence after the conditional residence expires, the couple must file Form I-751, ie Petition to Remove the Conditions on Residence. However, if due to a breakdown of the marriage, the US citizen petitioner refuses to cooperate, then the immigrant spouse's green card will be in jeopardy.

If the divorce is finalized before the conditional residence expires, Form I-751 must be submitted to the USCIS with a request for a waiver of the requirement that both parties must sign and file the form jointly. This allows the immigrant spouse to request that the USCIS make the conditional residence into permanent residence without the support of the US. citizen spouse.

For this application to be successful, the immigrant spouse must produce evidence that the marriage was entered into in good faith, and not for the specific purpose of obtaining a green card . This is crucial to receiving USCIS approval of permanent residence. Such evidence may include joint bank account statements, joint credit cards, joint auto titles, joint real estate holdings, joint insurance documents etc. as well as affidavits from mutual friends of the couple attesting to the good faith of the marriage.

A no-fault divorce, rather than a divorce based on the fault of the immigrant spouse, eg. abandonment or adultery, is the best option. The final divorce decree must be filed with the application.

With regard to citizenship applications, an immigrant spouse who has been married and living with the US citizen spouse has to wait only two years and nine months after obtaining the green card to apply for citizenship. After a divorce, this exception no longer applies, and the immigrant spouse must wait the usual four years and nine months before making a citizenship application.

If a divorce is filed after the immigrant spouse has received a permanent green card, this will have no negative impact on the green card, and will not change immigration status. However, it will add to the waiting time to apply for US citizenship as explained in the previous paragraph above.

If a divorce is finalized before the immigrant spouse has obtained conditional residence, the spouse is not eligible to adjust status to US permanent resident. Marriage is the basis for granting the spouse's green card, and a divorce terminating the legal marriage also terminates the spouse's eligibility for US permanent residency status on the basis of the marriage.