Divorce Issues for a U.S. Immigrant or Permanent Resident

The effects of divorce on a marriage based green card application, at every phase in the process.

If you got your green card (permanent residence) or other U.S. immigration status through marriage to a U.S. citizen or lawful permanent resident, you may wonder: What happens if you get a divorce?

Fraudulent Marriage Concerns

You are right to be concerned. U.S. Citizenship and Immigration Services (USCIS) believes that a significant number of immigrant marriages are fraudulent and entered into for the purpose of obtaining U.S. residence. Both U.S. law and USCIS policy contain many safeguards and requirements to ensure that only immigrants who have entered into real, valid marriages are awarded immigration benefits in the United States. And, of course, some couples who enter into fraudulent marriages can’t maintain the artificial lifestyle for as long as it takes to get a green card, so the marriage ends in divorce.

But real couples have relationship issues and get divorces, too. And the immigration laws recognize this fact. So a divorce somewhere along the process in your path to U.S. immigration isn’t necessarily fatal. How USCIS treats your divorce depends on how far along you are in the immigration process and how good a job you can do at convincing USCIS that the marriage was the real thing in the first place.

Steps in the Immigration Process

Below are some of the key steps during the immigration process and how a divorce will impact your immigration rights or status at that point.

  • After approval of visa petition (USCIS Form I-130). The visa petition simply starts the immigration process. It doesn’t give you any immigration rights. So if a U.S. citizen spouse or permanent resident has filed a visa petition for you, but you then divorce, you will not be able to take further steps toward U.S. immigration.
  • After approval for conditional residence. If you have already attended your visa or green card interview and been approved for conditional residence -- that is, a two-year green card given to a spouse whose marriage was less than two years old at the date of approval -- you’ll face some hurdles when USCIS next reviews your case. That will happen two years after your approval date, when you are required to submit USCIS Form I-751 asking that the conditions on your residence be removed and that you be approved for permanent residence. The usual way of filling out Form I-751 is as a joint petition, signed by both spouses, affirming that the marriage is still real and ongoing. After a divorce, however, you will have to submit the petition on your own, provide lots of evidence that the marriage started out as the real thing, and then ask for a waiver of the joint filing requirement. It gets more complicated if the divorce isn’t final yet when your Form I-751 is due. But, in any case, you will want to get an attorney’s help if you divorce at this stage in the process.
  • After approval for permanent residence. If you have already been approved for permanent -- not conditional -- residence, USCIS has no reason to take a second look at your application just now, so you need not worry. But read the next entry concerning your application for U.S. citizenship.
  • When you apply to become a U.S. citizen (naturalize). If and when you apply for citizenship, USCIS will have another chance to review your entire immigration history. If it sees any indications that the marriage that got you the green card was fraudulent -- and divorce might be considered such an indication -- it will ask you to provide documentation proving that your marriage was bona fide. If you’re unable to do so, USCIS may not only deny your citizenship, but refer you to immigration court proceedings for removal from the United States (deportation).

Getting Legal Help

If you (or your spouse) are in the process of immigrating to the United States, but are facing a possible divorce, contact an immigration lawyer for a personal analysis of your situation and advice on how to proceed.

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