Divorce can significantly impact your immigration status, especially if your residency is based on marriage to a U.S. citizen or lawful permanent resident. The effects vary depending on your current immigration stage—whether you’re applying for a green card, hold a conditional green card, or possess a permanent (10-year) green card. Understanding these nuances is crucial to safeguarding your legal status.
Divorce During the Green Card Application Process
If you’re in the process of obtaining a marriage-based green card and divorce occurs before approval, your application will likely be denied. U.S. Citizenship and Immigration Services (USCIS) requires that the marital relationship be bonafide and ongoing at the time of adjudication. A finalized divorce before green card approval typically terminates eligibility, as the foundational basis for the application no longer exists.
In such cases, it’s essential to consult with an immigration attorney to explore alternative immigration pathways that may be available based on your individual circumstances.
Divorce After Receiving a Conditional Green Card
Individuals married for less than two years at the time of green card approval receive a conditional green card, valid for two years. To transition to a permanent green card, you must file Form I-751, Petition to Remove Conditions on Residence, typically jointly with your spouse, within the 90-day period before the card expires.
If divorce occurs before filing Form I-751, you can request a waiver of the joint filing requirement. To obtain this waiver, you must demonstrate that the marriage was entered into in good faith and that its termination was beyond your control. Supporting evidence may include joint financial records, shared leases, photographs, and affidavits from friends and family attesting to the authenticity of the marriage.
USCIS scrutinizes these waiver applications closely to detect potential marriage fraud. Therefore, comprehensive documentation and, often, legal assistance are crucial to a successful outcome.
Divorce After Obtaining a Permanent (10-Year) Green Card
For those who have secured a permanent (10-year) green card, divorce does not typically affect your immigration status. You can continue to reside and work in the U.S. without issue.
However, when applying for naturalization, the duration and authenticity of your marriage can influence eligibility timelines. If you were married to a U.S. citizen for at least three years and lived together during that time, you might be eligible to apply for citizenship after three years of permanent residency. If the marriage ends before reaching the three-year mark, you would generally need to wait five years before applying for naturalization.
Additionally, USCIS may review the circumstances of your marriage and divorce during the naturalization process to ensure the marriage was not entered into solely for immigration benefits. Providing evidence of a bona fide marriage can help alleviate such concerns.
Impact on Naturalization Process
Divorce can also affect the naturalization process, especially for those applying based on marriage to a U.S. citizen. To qualify for naturalization after three years, you must have been married to and living with your U.S. citizen spouse for that entire period and remain married until the naturalization process is complete.
If the marriage ends before or during the naturalization process, you would typically need to wait until you have five years of permanent residency before applying. USCIS may also examine the reasons for the divorce and assess whether the marriage was genuine, which could impact the approval of your naturalization application.
How an Immigration Attorney Can Assist
Navigating the complexities of immigration law during or after a contested or uncontested divorce can be challenging. An experienced immigration attorney can provide invaluable assistance by evaluating your current immigration status and determining how divorce impacts your specific situation. They can guide you through the process of filing necessary waivers, such as the I-751 waiver, ensuring that all documentation supports the legitimacy of your prior marriage. Additionally, an attorney can help you prepare for USCIS interviews, where questions about your marriage and its dissolution may arise, and identify alternative immigration pathways if your current status is jeopardized due to divorce. Ensuring compliance with deadlines and requirements is crucial to maintain lawful status and avoid potential removal proceedings.
Divorce can significantly impact your immigration journey, but with the right legal guidance, you can navigate these challenges effectively. If you’re facing divorce and have concerns about your immigration status, seeking professional legal advice is crucial to protect your rights and future in the United States.
For more information on this topic or any related immigration issues, call (516) 953-9801 to schedule your FREE consultation.
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