Marrying a U.S. citizen can provide a pathway to legal residency in the United States. However, if the marriage ends in divorce, it can affect your immigration status, especially if your residency status is not yet permanent. Here’s a guide on what happens to your green card status if you divorce a U.S. citizen, including considerations for conditional residents, pathways for keeping your green card, and common concerns about residency.
1. Understanding Your Green Card Status: Conditional vs. Permanent
When you marry a U.S. citizen, you may receive a green card based on your marriage, which grants you the right to live and work in the U.S. There are two types of marriage-based green cards:
- Conditional Green Card (2 years): Issued if you have been married for less than two years at the time of your application. Conditional residents must file to remove the conditions and obtain a permanent green card after two years.
- Permanent Green Card (10 years): Issued if you have been married for more than two years. This type of green card does not require a conditional period.
Divorce can impact your ability to keep your green card, especially if you hold a conditional green card.
2. Divorce and a Conditional Green Card
If you divorce a U.S. citizen while holding a conditional green card, you’ll need to take extra steps to retain your residency. Conditional green cards are issued to prevent marriages of convenience and to confirm that the marriage was genuine.
Steps After Divorce with a Conditional Green Card:
- File Form I-751 with a Waiver: Normally, both spouses file Form I-751, Petition to Remove Conditions on Residence, jointly to remove the conditions on a green card. If you divorce before the two-year period ends, you can apply for a waiver of the joint filing requirement.
- Prove the Marriage Was Genuine: You must demonstrate that your marriage was entered in good faith and not solely for immigration purposes. Evidence can include shared finances, joint leases, photos, or affidavits from friends and family.
- Attend an Interview: In some cases, USCIS may request an interview to assess the legitimacy of your marriage. Be prepared to answer questions and provide documentation.
If USCIS approves the waiver, you’ll receive a permanent green card valid for 10 years. If your waiver is denied, you may face removal proceedings.
3. Divorce and a Permanent Green Card
If you already hold a permanent green card (10-year green card), a divorce will not directly affect your immigration status, as this type of green card does not require you to stay married to your sponsoring spouse.
However, if you plan to apply for U.S. citizenship, divorce may affect the timing:
- Naturalization Timing: Typically, you can apply for citizenship after five years as a permanent resident. If you’re married to a U.S. citizen, you can apply after three years. However, if you divorce before reaching three years, you’ll need to wait for the standard five-year period.
A permanent green card holder can retain residency even after divorce, but maintaining documentation of a legitimate marriage may still be helpful, especially if applying for citizenship.
4. Proving a Good-Faith Marriage
In cases of divorce, USCIS may closely examine your marriage to ensure it was genuine and not for immigration benefits. Here are types of documentation that can help establish a good-faith marriage:
- Joint Financial Records: Bank statements, joint credit cards, tax returns, and insurance policies.
- Shared Living Arrangements: Leases, mortgage documents, utility bills, or other evidence showing shared residence.
- Photos and Communication Records: Photographs together, social media posts, travel records, and emails or texts can help demonstrate a relationship.
- Affidavits from Friends and Family: Written statements from people familiar with your relationship can support your case.
Maintaining thorough documentation during your marriage can be invaluable if you need to prove your relationship’s legitimacy to USCIS.
5. Filing a Waiver of Joint Filing Requirement
If you divorce while holding a conditional green card, you’ll need to request a waiver of the joint filing requirement when applying to remove conditions on your green card. There are several grounds under which USCIS may grant a waiver:
- Good-Faith Marriage Waiver: Shows that your marriage was genuine but ended in divorce.
- Abuse Waiver: For individuals who suffered abuse or cruelty in the marriage.
- Extreme Hardship Waiver: If you would face extreme hardship if forced to return to your home country.
Each waiver requires specific documentation, so understanding the requirements for each type can increase your chances of approval.
6. If Your Waiver is Denied
If USCIS denies your I-751 waiver application, you may face deportation proceedings. During these proceedings, you have the opportunity to present your case before an immigration judge, who will assess your documentation and may overturn the USCIS decision if they find evidence that your marriage was genuine.
In such cases, consulting with an immigration attorney is advisable to navigate the complexities of the removal process.
7. Remarriage and Green Card Status
If you remarry a U.S. citizen or permanent resident after a divorce, your new spouse may sponsor you for a new marriage-based green card. However, USCIS may review this new marriage closely to confirm it is genuine, particularly if it occurs soon after a previous marriage to a U.S. citizen.
8. Frequently Asked Questions (FAQs)
1. Will I lose my green card if I divorce my U.S. citizen spouse?
Not necessarily. If you have a conditional green card, you may need to file a waiver. If you have a permanent green card, your residency is not directly affected by divorce.
2. How can I prove my marriage was real if I am divorced?
Submit documentation like joint financial records, photos, communication records, and affidavits from friends or family members attesting to your marriage.
3. Can I apply for citizenship if I divorce my U.S. citizen spouse?
Yes, but you must wait five years as a permanent resident instead of the shorter three-year period applicable to spouses of U.S. citizens.
4. What happens if I don’t meet the waiver requirements?
If USCIS denies your waiver, you may face removal proceedings. During these proceedings, you can present your case to an immigration judge.
5. Can I remarry and obtain a new green card after a divorce?
Yes, but USCIS may scrutinize your new marriage for authenticity, especially if it occurs shortly after your previous marriage.
6. How long should I keep documentation of my marriage?
It’s wise to retain documentation until you’ve naturalized as a U.S. citizen, as it can support your status if questions arise.