How Does Divorce Affect Immigration Status?

If you married a U.S. citizen or lawful permanent resident, you may be wondering if getting a divorce will affect your chances of getting or keeping your green card. The concern is whether U.S. Citizenship and Immigration Services (USCIS) will question the validity of your marriage, and if you entered into marriage for real or fraudulent reasons.

U.S. law and USCIS policy require that only those who have entered into real marriages are awarded immigration benefits in the United States. This means it is illegal to marry someone for the sole purpose of gaining legal immigration status. We’ve all heard the extreme stories of people trying to game the system and pay to marry someone to get their green card. This is the type of fraud the law is designed to prevent.

Marriages have issues and end in divorce all the time. Just because you are seeking lawful permanent resident status through marriage and are going through a divorce does not mean your marriage was not real. It is important to consult with an experienced family law and immigration attorney to know how a divorce will specifically affect you and your situation.

If you are a conditional resident, your initial application for residency through marriage was granted but your status will expire in two years. To go from conditional resident to permanent resident, you much show that you were married in good faith—not fraud or a sham—and that your marriage has lasted at least two years beyond your approval for conditional residency.

How do you change from conditional resident to permanent resident?

To change your status from conditional resident to permanent resident, you are required to complete the I-751 immigration form, which requires the signature of both you and your U.S. citizen or permanent resident spouse; however, if you are going through a divorce or have obtained a divorce, you will need to apply for a waiver so that your spouse’s signature is not required. UCSIS is not required to approve your waiver so it is important to show your marriage was real and entered in good faith.

If you are a conditional resident and you divorce your spouse within two years of receiving the conditional residency it may be a challenge when you apply for permanent residency. USCIS will require a copy of either the divorce decree or marital settlement agreement as part of the non-citizen spouse’s I-751 paperwork and will take note of any allegation that the marriage was made in bad faith.

Proof that the marriage was entered into in good faith—rather than fraudulently—is crucial to receiving USCIS approval of your permanent residence. You may have to show more than just a real marriage; you may even have to show that it wasn’t your fault the marriage failed.

If you already have a green card and are a permanent resident at the time of the divorce, the divorce should not change your status. If you are naturalizing while married, the waiting period is three years; however, if you are trying to naturalize during or after a divorce, the waiting period would be five years.

If you married to an H1B visa holder (or other type of visa), and your spouse has an approved adjustment of status application, but the priority date is not yet current, a divorce or separation may disqualify you as a dependent. In this case, you may not be able to obtain a green card once the priority date becomes current.