Divorce after a permanent green card is issued – How does this affect immigration status?
Getting a divorce after a permanent green card is issued happens frequently to many couples in the United States. The entire divorce process comes with a lot of uncertainty and it is especially important for the immigrant to know their legal rights when this unfortunate situation happens.
Divorce consequences for ten-year green card holders
The consequences to the immigrant are minimal if he or she gets divorced after the ten-year green card is issued. A ten-year green card is issued, in marriage-based cases, to the spouse of a lawful permanent resident or a U.S. citizen based on certain circumstances. The marriage must be more than two years on the date that USCIS approves the case, even if the application was sent before the marriage reached the two-year mark. Once a ten-year green card is issued, there is only one higher immigration status that you can achieve and that is U.S. citizenship.
If you are still married to your spouse after getting the ten-year green card, then you only need to be a green card holder for three years to apply for U.S. citizenship. If you are divorced, then you will have to be a resident for five years before you can apply. There is no need to panic if you are divorced from your spouse and you want to become a U.S. citizen. There is nowhere on the N-400 application for your ex-spouse to sign and your spouse does not need to appear at the naturalization interview with you.
Removing conditions from two-year green card after divorce
Unlike ten-year green card holders, the immigration consequences for two-year green card holders can be very complicated, if a divorce occurs. A two-year green card is also called a conditional residence card. You cannot renew a two-year green card. Ninety days before the two-year green card expires, you need to apply to USCIS to remove the conditions, with one notable exception. You can file the I-751 petition to remove conditions before the 90-day window if your divorce is finalized any time after you were granted conditional residence. When it is time to file the I-751, if you and your spouse are still married, both parties will sign the I-751 application and file it. If the immigrant is no longer married, then he or she will need a waiver. This means that your spouse will not sign the application and you will need to tell USCIS the reason for the waiver.
According to USCIS, there are five different circumstances in which you can file the I-751 without your spouse:
1. You entered the marriage in good faith, but your spouse subsequently died;
2. You entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse; or
3. Your conditional resident parent entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent’s U.S. citizen or lawful permanent resident spouse or by your conditional resident parent; or
4. The termination of your status and removal from the United States would result in extreme hardship.
5. You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;
The last situation is most pertinent to this article. If you are divorced at the time you are filing the I-751, you will need to prove that you and your spouse entered into a good faith marriage and not to evade immigration laws. If you don’t file the I-751, you will automatically lose your conditional permanent resident status. You can then be deported, so this is a mistake you do not want to make.
In some circumstances, you may be able to file late and provide an explanation to USCIS why you were late. You should try to avoid filing late. On late applications, you are going to have to prove that failure to file was through no fault of your own and file a written explanation and request that USCIS excuse the late filing. You must demonstrate when you file the petition that the delay was due to extraordinary circumstances beyond your control and that the length of the delay was reasonable. What is important to note is that you must either be married or single at the time you are filing for conditional residence. Legal separation is considered married for USCIS purposes. If you are going to be filing without you spouse, you may need a fast divorce to avoid jeopardizing your immigration case.
Florida divorce process for green card holders
To obtain a divorce in Florida, you need to be a resident in the state for six months. You also need to prove that the marriage is irretrievably broken or that your spouse is mentally incompetent. The divorce is not hard to get in Florida because it does not require any of the spouses to prove why the marriage is headed for a divorce. Only one spouse need to meet the six-month residency requirement. If there are minor children between you and your spouse, there will be need for a parenting plan and calculation of child support. If there is property between the spouses it should be divided 50/50. The divorce process can take as little as twenty days but some cases drag on for years depending on the issues involved.
How an Immigration and Divorce Attorney can help
A qualified immigration and divorce attorney can answer questions related to a divorce, after a green card is issued. This helps you avoid unnecessary mistakes that can put your case at risk. Chery Fletcher is a divorce and immigration attorney in West Palm Beach, Florida who has being helping immigrants through the green card and divorce process.
If you would like to get in touch with immigration and divorce attorney, Cheryl Fletcher , call 561-507-5772 to get a fast consultation or fill in the contact form on the website and we will call you right away.
Sources: U.S. Citizenship and Immigration Services, “After a Green Card is Granted” Accessed May 16, 2018
U.S. Citizenship and Immigration Services, “Conditional Permanent Residence” Accessed May 16, 2018