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How Is Immigration Status Affected By a Divorce?

Posted by Irena Mykyta | Jan 10, 2022 | 0 Comments

The United States has the sixth-highest divorce rate globally; about 50% of all couples who marry will potentially end up getting divorced. A divorce can be a devastating event for just about anyone, but it's especially problematic for immigrants who have recently acquired a green card or are in the process of obtaining a green card. If you are concerned about your immigration status because you're in the midst of separating from your spouse, read on to learn the necessary steps you must take to remain in the United States legally.

The Stages of the Green Card Process

There are several stages that all immigrants go through on the path to obtaining their permanent resident card, aka their green card. Immigration status is directly tied to which stage the immigrant has attained when they begin the divorce proceedings.

A 10-Year Green Card Holder

Anyone who already holds a 10-year green card is considered a lawful permanent resident of the U.S. Therefore, ending your marriage generally won't affect your status. You have two options: at the end of the 10-year term, renew your green card by filing Form I-90, or after being a permanent resident for 5 years, apply for naturalization and become a U.S. citizen.

A Conditional Green Card Holder

Immigrants who have been married for less than two years will have some additional hurdles to overcome when they petition the USCIS for removal of the conditions ( e.g. of the two-year condition) by filing I-751 with supporting documents. There are two situations to consider. First, if you are already divorced at the time you file your I-751 petition, you can file your petition alone, without your spouse, and request a waiver. But, because separation or divorce cast doubt in the eyes of the USCIS on the validity of the marriage, you will need much more proof that the marriage was legitimate and not for the purposes of obtaining a green card. Second, if you file your I-751, and then separate or file for divorce, you and your spouse will have to explain the separation during the interview, submit a lot of hard proof that you entered into a good faith marriage, and you will receive a Request for Evidence in which the immigration officer will give you 87 days to provide evidence that the divorce is final - in New York, it is called a divorce judgment. There are a lot of timing issues involved in this process. If you fail to provide proof of divorce (a divorce judgment), your I-751 will most likely be denied.

Therefore, you should seek advice of an immigration attorney who will guide you through the process and help you prepare documentary evidence to meet the high burden of proof. In most cases, you would want documents showing that you and your spouse had combined finances, joint residence, or children in common. You may be asked to provide photos and other evidence that you socialized and traveled together, made purchases jointly, gave each other gifts, or otherwise acted like a married couple during your time in the U.S.

Divorce before Initial Application for a Green Card

An immigrant who gets divorced before the approval of their initial application will no longer be eligible to receive a green card through marriage and may face removal from the U.S. However, they may apply for permanent residence based on employment, refugee status, family relationships, and other grounds.

A Tricky Situation

Unless you're a permanent resident, it's likely that juggling a divorce and a green card will turn into a tricky situation. Even as a permanent resident, it may be difficult to become naturalized after a divorce, if you have insufficient proof that your marriage was entered into in good faith.

Your best bet is to consult with an immigration attorney who can guide and advise you during this process. Contact Mykyta Law Firm to schedule a consultation with an attorney who has experience in this type of law.

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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