Divorce is never easy, but it can be especially difficult for immigrants who have or are seeking a green card. While there is nothing that prevents a green card holder from getting a divorce, it may have an impact on their immigration status, and therefore the ability to remain in the United States. Green cards and immigration law add a layer of complexity to the divorce process, so you need a dedicated Orlando family law attorney who has handled these types of cases.
Turn to Orlando Family Team. We work with spouses who are green card holders or who want to simply understand their rights and obligations. If it is something that needs more particularized attention, then we will connect you with one of our trusted immigration law colleagues. Before taking any action regarding separation or divorce, let us review your case.
Common Divorce Questions That Green Card Holders Face
If you have or are seeking a green card, and either you or your spouse wants a divorce, there are some important questions you should be asking:
- How will the divorce affect my immigration status?
- Will I be able to get a green card if I divorce?
- I already have a green card, so how will the divorce affect it?
- Can I remain in the United States after the divorce?
How a divorce will affect your green card largely depends on your individual status. We will examine a few common scenarios below.
A Conditional Residency Green Card in a Divorce
If you married a United States citizen and thereby became a resident, you have what is considered conditional residency. You will be a conditional resident of the United States for the first two years of your marriage and will be granted a conditional green card that is valid for that two-year period.
To move from conditional to permanent residency, you are required to file a Form I-751, Petition to Remove Conditions of Residence. This form must be filed during the final 90 days before the conditional green card expires. The purpose of the I-751 is to prove to the government that you didn’t enter into a sham marriage simply to obtain U.S. citizenship. Both spouses will want to jointly file this form and submit evidence to prove they have a valid marriage. Such evidence may include:
- Joint bank account statements
- Copy of a joint mortgage or lease
- Photos taken during the marriage
- Text messages exchanged during the marriage
If you have divorced by the time you file your I-751, you still have the option to file the form using a waiver. A waiver will be used to show that the marriage was entered into in good faith and that you, the conditional green card holder, were not responsible for the divorce. A waiver is also available if you are legally separated or about to be divorced.
Details About I-751 Waivers
As mentioned above, an I-751 waiver may be necessary for a conditional green card holder who divorces or is going to divorce during their conditional status. One of the requirements of the waiver is to show that the divorce was not your fault. You’ll need to submit supporting evidence to the U.S. Citizenship and Immigration Services (USCIS), which may include:
Proof that your spouse was at fault for the divorce. This may include an affidavit from friends or family members that your spouse committed adultery, became incarcerated, or otherwise did something constituting fault.
Proof of irreconcilable differences. Some spouses divorce due to irreconcilable differences, in what is known as a no-fault divorce. But proving what these differences were may be important.
Proof of attempts to reconcile. If you attempted to save your marriage, for example through marriage counseling, you should get proof of this. It will go a long way to show that you didn’t simply end the marriage (which may suggest it was a sham), but that you tried to make it work.
An I-751 waiver may also be available if the marriage was entered into in good faith but the spouse requesting it:
- Was subjected to physical battery or extreme mental cruelty
- Would suffer extreme hardship if returned to his or her country of origin
What About Separation?
Florida does not have what some people refer to as “legal separation.” However, Florida couples can physically separate – live separate and apart from each other – and remain legally married. If the spouses are physically separated, they can still file a joint petition for an I-751 as mentioned previously. But USCIS may use the separation as evidence that the marriage was not valid. If you’re separated and believe the separation will end in divorce, it may be a good idea to file for a waiver.
Form I-130 Approval
The I-130 form, known as the Petition for Alien Relative, is submitted by a U.S. citizen or lawful permanent resident to allow an “eligible relative” to come to the United States. This allows certain foreign relatives, including spouses, to live in the country with a Permanent Resident Card. This procedure is referred to as family-based green card processing.
Approval of the I-130 form does not grant you your green card, nor does it allow you to live permanently in the United States. It is merely the first step toward receiving your green card. Your relationship with your spouse is the basis for your green card eligibility. That means if you divorce before you receive your green card, you will no longer be eligible for it.
Divorce After Legal Permanent Residency
If, at the time of your divorce, you already have a green card and have become a legal permanent resident, then the divorce will not affect your status. It doesn’t matter whether you had a so-called “green card marriage,” because USCIS has no reason to review your case by this point.
While divorce at this point doesn’t affect your green card status, it could have an impact on your ability to become a U.S. citizen through naturalization. A divorce that takes place before naturalization will require the spouse to wait five years to naturalize, rather than the usual three.
Questions About Divorce And Your Green Card Status? We Can Help
Your status as a green card holder will unquestionably add some complexities to your divorce, but Orlando Family Team is here to serve you. If you are separated, divorced, or you think either of these is in your future, let us know right away. Call now to set up your confidential consultation.