There is no doubt about the significant life changes that are expected to follow after a divorce. There is only so much a divorcee may hold certain, as every divorce case is uniquely different. For instance, the outcome of a divorce may depend on circumstances such as children, shared assets, and alimony. In other instances, divorcees who are not citizens of the United States may also face additional challenges. This article will explore the implications and repercussions of going through a divorce after receiving a green card.

What Is a Green Card?

For non-citizens to better understand the repercussions of a divorce, we’ll take a look at a brief overview of what exactly is a Green Card. A Green Card is also known as a Permanent Resident Card, which allows a person to live and work permanently in the United States. There are multiple ways to obtain a Green Card, one of the common ways is through marriage. Generally, an immigrant spouse will receive a green card after getting married to a U.S. citizen. The status of the Green Card is further broken down into two categories; conditional permanent resident status and permanent resident status.

Related: How To Get a Green Card In California

Conditional Permanent Residency

An immigrant spouse typically receives a conditional permanent resident status in the first two years of their marriage. Broadly speaking, conditional residents have the same rights as permanent residents. For example, both conditional and permanent residents can travel in and out of the U.S., are authorized to employment without having to apply for a work permit, and are eligible to apply for U.S. citizenship. However, a divorce may have a more significant impact on the immigration status of a divorcee holding a conditional permanent resident status.

Permanent Residency

On the other hand, immigrant spouses wedded over two years are eligible to obtain a full permanent resident status by filing a petition with USCIS.

Getting a Divorce While Holding a Green Card

Individuals who file a divorce while obtaining a conditional resident status have a greater risk of losing their immigration status or even face deportation. To prevent losing their status, individuals can file form I-751 Petition to Remove Conditions on Residence with the USCIS. Normally, a petition to remove conditions on residence must be filed jointly with a spouse. However, in some cases, a divorce may make joint-filing impossible. In these cases, divorcees can file the petition with a waiver. The waiver is essentially a request that the joint-filing requirements can be waived and done without the support of the U.S. spouse.

Filing Form I-751 is no easy matter. There are several cases where fraudulent marriages are used as a way to gain citizenship. Therefore, USCIS heavily scrutinizes the petition to verify that spouses have entered into a real marriage rather than just to get a Green Card. Consequently, the waiver typically requires an additional burden of proof such as;

  • Good Faith
    Example: the marriage was entered in good faith but was terminated through a divorce or annulment
  • Extreme Hardship
    For example: by revoking the immigration rights of the divorcee, the divorcee will be removed from the United States and result in extreme hardship.
  • Domestic Abuse
    Example: The marriage was entered in good faith, but the divorcee was a subject of abuse or extreme cruelty during the marriage.

Divorcees that can provide this evidence will generally be exempted from deportation. However, as earlier mentioned, form I-751 is under heavy scrutiny, and the stakes are high. An unsuccessful petition often results in removal proceedings. It is always recommended that an individual seeks consultation with an immigration attorney to ensure all the requirements are met and that there are no mistakes in the filing process.

Getting a Divorce After Holding a Permanent Resident Status

An immigrant spouse that has been wedded after two or more years will typically obtain permanent resident status. In this case, the divorcee is less likely to lose their immigration status or face deportation. Although a divorcee will still be allowed to remain in the U.S, divorce will still have some repercussions on obtaining citizenship. For instance, some delays might occur due to residency requirements. Generally, immigrants married to U.S. citizens must satisfy a three-year residency requirement before becoming naturalized citizens. However, after a divorce, the residency requirement time usually extended to five years.

F.A.Q.s:

Q: Will my immigration rights have an impact on other people?

A: A specific answer will depend on the circumstances of each case. Generally, a divorce may affect immigration status. In some cases, it may also have an impact on the people around you. For instance, if a family member or a relative’s stay in the U.S. is dependent on your sponsorship, their ability to remain in the country may also be affected.

Q: I’m an immigrant, married to a U.S. citizen. Will getting a divorce affect child custody?

A: Child custody is always determined by a “child’s best interest”. This is true for all divorce cases. Regardless of sex, religion, gender identity, or immigration status, a child’s best interest is the most important thing courts will consider when deciding which parent gets custody. In some cases, a parent may remain in the United States to obtain fair child custody agreements. It is best to consult an immigration attorney as soon as possible to help you on this matter.

Contact Pride Legal

If you or a loved one has been thinking about getting a divorce or applying for U.S. citizenship, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.