Divorce After Permanent Green Card Issued: Overview

“Divorce after permanent green card issued” is a thought that may keep you up late at night, as you contemplate the effect that this may have on your immigration status. It is very common in America for marriages to end in a divorce. The entire divorce process comes with great uncertainty and it is especially important for you to know your legal rights when this unfortunate situation happens. An experienced immigration attorney that charges a reasonable fee is your best bet, in these circumstances.

Consequences for Ten-Year Green Card Holders

It is less risky to get a divorce if you have a ten-year green card, rather than a two-year conditional green card. In marriage-based cases, United States Citizenship and Immigration Services (“USCIS”) issues a ten-year green card 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 you receive a ten-year green card, there is only one higher immigration status that you can achieve and that is U.S. citizenship.

There is no need to notify USCIS of your divorce, unless you are applying for United States citizenship. You may continue to renew your green card every ten-years without providing any information about your divorce, simply because the I-90 Application to Replace Permanent Resident Card does not require it.

As a permanent resident, you have already proven to the U.S. government that you were in a real marriage. However, if you get a divorce too soon after your green card case is approved, the government could suspect marriage fraud. There is no exact period of time when it is safe to get a divorce, however, you should look at what is reasonable. If you file for a divorce within a week of getting your green card, it is more likely for the government to believe that you committed marriage fraud, compared to someone who waited a year.

A divorce does impact your eligibility for U.S. citizenship. If you are still married and living with your U.S. citizen 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. Some exceptions apply, for example VAWA divorcees are eligible in three years. 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. You must however, provide a copy of all your divorce decrees. You can become a U.S. citizen even after obtaining a divorce after permanent green card issued.

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Removing Conditions from a Two-Year Green Card

Unlike ten-year green card holders, the immigration consequences of a divorce can be very complicated for two-year green card holders. 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 must apply to USCIS to remove the conditions, with one notable exception. You may 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 form I-751, if you and your spouse are still married, both parties must sign and file the I-751 application. If you are no longer married, then you must check the box on the application, indicating that you are applying for a divorce waiver. You will not need your spouse’s signature if you are applying for a waiver.
According to U.S. immigration law, there are five different circumstances in which you can file the I-751 form 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;
4. The termination of your status and removal from the United States would result in extreme hardship; or
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 that you are filing the I-751 petition, you must prove that you and your spouse entered into a good faith marriage and not to evade immigration laws. If you do not 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. You may be able to file late and provide an explanation to USCIS as to 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 requesting 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 to remove the conditions on your residence. Legal separation is considered married for USCIS purposes. If you are going to be filing without your spouse, you may need a fast divorce to avoid jeopardizing your immigration case.

Divorce Process and Requirements for Green Card Holders

Getting a divorce after permanent green card issued may not be the most ideal circumstance but you can successfully move through this chapter of your life. For you to be eligible for a divorce, most U.S. states have a residency requirement. In Florida, it is six months; other states may vary. In addition, most states offer a “no fault divorce.” This means that you do not have to prove whose fault it is why the marriage is broken. You only need to state in your divorce petition that the marriage is broken and the court, therapy, counseling nor any other method of intervention cannot repair it. You should check the laws of your state to learn what is required for your divorce. If there are minor children and property involved, this could delay your divorce case, as you may have to negotiate a custody plan and a property settlement agreement between you and your spouse. If the divorce is amicable, it may take a few weeks to finalize an agreement. However, if your case is adversarial, it may go to trial and this could take years.

Your I-751 application could be pending for many years while the divorce is also pending. The most important issue for you to note is that your divorce must be finalized at the time USCIS makes a decision on your application.

How an Immigration and Divorce Attorney Can Help

Practicing on your own immigration and divorce case is never a good idea. There is too much room to make many mistakes. Some of these mistakes are irreversible and could lead to deportation. A qualified immigration and divorce attorney can answer all your questions, properly prepare evidence and devise the best legal strategy to help you win your case. You also gain peace of mind, knowing that your case is being handled with legal expertise.

My name is Cheryl Fletcher and I have been a divorce and immigration attorney since 2015. I have helped hundreds of immigrants overcome unexpected immigration and divorce issues. If you would like a personal evaluation of your case, please contact us right away to schedule a consultation.

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

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