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Marriage, Divorce and Green Cards

Marriage Divorce Green Card

Marrying a US Citizen is typically an unquestionable path to gaining lawful permanent residency and, eventually, naturalization - however love doesn't always last as long as lengthy USCIS processing times. In the mess of divorce, what happens to your green card application?

The Normal Process

The normal process for marrying a US Citizen and obtaining your green card or citizenship might look like this:

  • Apply for a K-1 visa and get approved
  • Get Married - You must do so within 90 days of arrival in the US on a K-1 visa
  • Apply for a 2-year conditional green card (Adjustment of Status) once married
  • Petition to remove conditions and receive a 10-year permanent green card after two years
  • Wait three years before applying to naturalize
  • Gain US Citizenship

If you already live in the US, you would simply apply directly for your 2-year conditional green card after marriage. If you live outside the US and are married, you would go through the process at your local US consulate.

What happens to your green card when you get divorced depends on what step of the process you were in when the separation happens. Here are some of the situations you might encounter.

Separation Before Marriage

The K-1 visa specifically forbids entrants from applying for lawful permanent residence based on marriage to someone other than their U.S. citizen, K-1 petitioner, which means if you were left at the altar, you will not be able to obtain a green card by marriage unless you leave the US and re-enter the US on a different immigrant or non-immigrant visa at another point in time.

Divorce before Ten-Year Green Card

If you obtained your green card through a marriage which was 2 years old or less, the green card you receive is a two year conditional green card. At the end of the two-year period, the married couple must file a joint petition - Form I-751, Petition to Remove the Conditions on Residence - in order to remove the conditions on the foreign spouse's green card. At this juncture, they couple will also be asked to provide evidence to prove that the marriage is a real one. If approved, the spouse will receive a permanent, ten-year green card.

If the couple gets divorced within the two years after receiving the conditional green card (i.e., prior to filing the joint petition), the applicant can file for a waiver to the joint petition and file without the US Citizen spouse. While it is not impossible to win the petition - the USCIS does acknowledge that love doesn't always last - they will most definitely scrutinize the case closely, and you'll be asked to provide the reason behind the separation.

We always recommend that you speak to an immigration attorney before filing I-751 with a waiver to make sure you get the right advice for your specific situation.

Divorce After Ten-Year Green Card

If you already have your ten-year permanent green card, there's not much issue with getting a divorce as it likely won't impact your immigration status. When you need to renew or replace your green card, you simply file Form I-90, Application to Replace Permanent Resident Card - there are no questions directly related to your marriage status.

If you have gotten a divorce and would like to change your name on your green card, you can do so when you apply to renew or replace it. You'll need to indicate the name change on Form I-90 and submit a copy of the legal name change document, which should be sufficient.

Divorced and Married Someone Else Within Five Years

Let's say you were married to a US Citizen, gained permanent residency, got divorced and you're now looking to sponsor your new spouse for permanent US residency.

This is not an impossible task.

As a green card holder, you are allowed to sponsor your spouse for his or her green card. However, if you gained your permanent residency based on marriage to a US citizen, you will likely be asked to provide significant proof that both marriages are real - your first marriage, the one in which you got your green card, and the current one. If you have had your permanent green card for more than five years, this may not be asked of you.

Divorce Before Naturalization

Being married to a US Citizen allows you a quicker path to naturalization - you can apply after three years, rather than the standard five years, as a permanent resident. If you get divorced before filing for naturalization, it would impact your eligibility to file after the three year period. Even if you were married for over three years and applying for naturalization after the three year period, you must continue to be married at the time of naturalization for your application to be approved.

However, if you do get a divorce prior to gaining citizenship, you may still be eligible to file for naturalization after five years as a permanent resident. In this situation, your eligibility is not dependent on a current marriage so divorce would likely not impact your eligibility to file.

If you have questions about your marriage, divorce or green card eligibility, please feel free to contact us for help. In a time of constantly changing immigration laws, it's more important than ever to have legal counsel on your side during your immigration petition.

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