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Divorcing Before You Get Your Green Card

Posted by Irena Mykyta | Dec 01, 2016 | 0 Comments

Marriage isn't always what we expect it to be. You may have spent many happy years dating someone, only to find that they became a different person once you two married. Divorce is complicated enough, but what if you or your former spouse were in the process of becoming a permanent resident?

The main worry of the United States Citizenship and Immigration Services is that a couple's marriage solely exists to petition for a visa. Getting divorced unfortunately is taken as a sign of such. However, in real relationships, people encounter disagreements and changing feelings. It is not unusual for separation or divorce to arise.

As there many steps that are involved in the process of gaining the citizenship, there are several outcomes, depending on when you separated or divorced from your spouse.

If you divorce after you've been approved for a visa petition

If you divorce at this stage, you will not be able to proceed towards immigration.

If you divorce after you've been approved for conditional residence

Once you have been approved for conditional residence, USCIS will review your case again two years from your approval date. You will need to submit form I-751 that requests that conditions be removed from your residence and to be approved for permanent residency.

Previously, you would have submitted this form with your spouse. At this point, you will need to submit the form alone. However, you will need to provide documents that show the marriage was in good faith, such as the most recent mortgage statements, joint bank account statements, or a birth certificate if a child was born. In addition, going to marriage counseling and providing proof of the counseling is another way to show the marriage was real.

Along with submitting form I-751, you will need to fill out a waiver that excuses you from filing jointly with your spouse. The reason for this is because your original circumstance was filing for residency because you were married, and now your circumstances have changed.

The waiver will be based on:

-Divorcing after a good-faith marriage
-Being battered or abused by your spouse in a good-faith marriage
-The likelihood of the extreme hardship and suffering you will face if returned to your country of origin

If you divorce after you've been approved for permanent residence

If you are already a permanent residence, you do not need to be concerned just yet. It is when you apply for citizenship that USCIS will review your case once more.

If you divorce after you've applied to be a U.S. citizen

If you are applying for naturalization, your documents will be reviewed again. A divorce after receiving a green card does not look good on your end, so you must provide proof of a bona fide marriage. The same documents as before, including pictures of you together and with family, affidavits from friends and neighbors, and proof of shared expenses.

In each individual case, there is a risk of not receiving residency or citizenship. There is also the possibility of facing removal from the country. If you are divorcing, but you or your spouse are currently in the immigration process, contact Irena Mykyta Law Office today for a free consultation on what is best for you and your family.

Irena Mykyta is a New York lawyer. This blog is not legal advice and should not be acted upon without obtaining legal counsel. To request further information, contact Irena for a free 30 minutes consultation at [email protected]

About the Author

Irena Mykyta

 In 2014, Irena founded her own law firm in order to provide clients with more individualized attention, - something she always dreamed about when she worked as a judicial clerk at the New York State Supreme Court and as an associate at a prominent New York law firm. Her firm's focus on a few cor...


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