A divorce or annulment may pose a problem if you obtained your green card through marriage to a U.S. citizen or permanent resident. In these cases, USCIS issues a two-year conditional green card. The two-year period provides USCIS time evaluate the bona fides of the marriage. Immigration law requires USCIS to take additional steps in green card marriages to ensure that the marriage was entered in good faith. At the end of this probationary period, the couple must file a joint petition Form I-751, Petition to Remove the Conditions on Residence) along with evidence to prove the bona fides of the marriage.
The potential issue here is if a divorce casts doubt on whether the marriage was genuine. A waiver to the joint petition is available. The conditional residence can file Form I-751 after divorce. But USCIS will almost certainly give the case additional scrutiny. They want to make sure that the marriage was entered with good intentions. This is, USCIS needs to confirm that the marriage was not for the purposes of circumventing immigration law and fraudulently obtaining a green card.
The conditional resident will need to provide ample evidence that the marriage was the real thing. USCIS recognizes that couples who were once in love and committed to each other can have their relationship fall apart. But the burden of proof is on the conditional resident to prove this fact.
A divorce after obtaining your conditional green card shouldn’t stop you from filing your I-751 petition. In fact, you may prepare Form I-751 with a waiver to the joint filing requirement (due to divorce after green card). However, we always recommend that you speak to an immigration attorney before filing I-751 with a waiver. The stakes are high. Make sure you get the right advice for your specific situation.
Getting Your Green Card After Divorce
What happens if you get a divorce before the end of the two-year conditional period? If you find yourself in this scenario and the final order of divorce is obtained before the initial period ends, then you will need to convince the USCIS that there is a valid reason to bypass the joint filing requirement. This can be done by demonstrating that the marriage was bona fide to begin with and not fraud.
A qualified immigration attorney will also advise you to prepare a formal explanation of the reasons for the divorce occurring. If your case is not compelling and the USCIS finds that the marriage ended due to fault on your behalf (i.e., adultery, abandonment, etc.) you will likely have your I-751 petition denied.
Filing I-751 Waiver Before Finalizing Divorce
If you have a final order of divorce (or annulment) you are able to file Form I-751 at any point even if you aren’t approaching the conditional green card expiration date. If you are currently separated but your spouse is not willing to file an I-751 form you will have to petition alone. To do this you will need to submit a waiver for the joint filing requirement. The waiver requires that you provide evidence that the marriage was not ended on your account and that your marriage was legitimate from the start.
Submitting Evidence Regarding Divorce
As previously mentioned, you’ll need to submit evidence to the USCIS demonstrating that the fault was not on your part. Examples of evidence include:
- Disagreements related to irreconcilable differences (i.e., child rearing, finances, etc.) This is what’s known as a no-fault divorce.
- Burden of fault lies with ex-spouse. If the divorce was due to your spouse’s alleged adultery, imprisonment or another relevant reason you can provide affidavits from people in your life familiar with the situation.
- Attempts to reconcile (i.e., marriage counseling). If there was an effort on your part to seek marriage counseling or another form of reconciling help you can supply to invoices from the session. This will help the USCIS see that the marriage was bona fide to begin with and that you are not at fault for its termination.
It is important to note that this list is not exhaustive. Consult an immigration attorney to learn about other types of evidence may be appropriate when contemplating a green card after divorce.
Factors to Consider– Green Card after Divorce
There are a number of factors to consider if your divorce is not yet final. If you or your child was subject to battery or violence from the citizen-spouse, then you may be able to bypass the divorce waiver. If that’s the case, you’ll need to file Form I-751 with a http://www.uscis.gov/i-751 and/or I-751 with a waiver based on abuse/battery.
After You File
After filing your petition, you’ll be issued a receipt notice (on Form I-797) to serve as a green card after the conditional status expires. This will permit you to live and work in the U.S. as well as travel overseas. If you receive any types of RFEs (requests for evidence) be sure to respond in a timely manner. A green card attorney can guide you as to which documentation is necessary.