The Relationship between Immigration Status and Divorce

Can a conditional resident facing divorce from a U.S. resident obtain permanent residency, or does the green card always disappear with the marriage?

By Catherine Miller
Updated: November 16, 2017

Immigration Status and Divorce: The Many Complications That Can Arise

Immigration-Status-and-Divorce

Divorce can be a nerve-wracking experience for both partners. But it can become worse if one of the partners is a U.S. resident and the other is a non-resident or a conditional resident. In order to convert your conditional residency into permanent residency, you must fulfill two conditions, which are:

  • You must be married in good faith. Meaning you should not have married for the sole purpose of obtaining a green card.
  • You must be married for at least two years.

In order to get permanent residency, both partners need to file the Form I-751, Petition to Remove the Conditions of Residence. It is essential that the husband and the wife sign the form and mail it to the U.S. Citizenship and Immigration Services (USCIS) “within the 90 days before the two-year anniversary of the date your conditional green card was issued.”

However, things may not be the same if you divorce before the completion of the stipulated two years of marriage. If the marriage ends in a divorce before the completion of two years, the immigrant spouse will lose his/her immigration status and may face deportation. This means the probability of obtaining a permanent residency for the immigrant spouse is almost zero.

Immigration Status and Divorce: Protecting Your Immigration Status in the Event of Divorce

Conditional residents can file a lawsuit to protect their immigration status with help of an immigration lawyer. For instance, if you have married a Cleveland citizen and are getting divorced before completing two years of marriage, you may have to leave the country even if the visa petition filed by your U.S. citizen spouse was approved. However, you may be able to secure your conditional permanent residency with help of a Cleveland immigration lawyer if you had submitted the application for the green card prior to filing for divorce.

Therefore, it is a must for conditional residents to consult a lawyer in case they have filed for divorce against their U.S. citizen spouse.

How to Protect Your Immigration Status

In order to protect your immigration status even after divorce (before two years of marriage), you must be able to prove:

  • The marriage was done in good faith and the marriage ended with no fault of the immigrant spouse. The immigrant spouse will face extreme hardships if deported.
  • The immigrant was treated badly – battered or treated with extreme cruelty by the U.S. citizen spouse, and the cruel treatment was the reason for the divorce.

However, proving one or more of the above is not easy. You need to provide enough evidence to prove your claims. Therefore, working with an experienced lawyer is crucial. Moreover, if you finalize your divorce and still want to obtain the green card (while holding conditional residency), you need to request for the waiver of the usual requirement (of you and your partner jointly filing the I-751) along with submitting the Form I-751 to the USCIS. This request must be accompanied by the following documents:

  • Divorce decree or settlement.
  • Proof that the marriage happened in good faith.
  • A statement explaining why you got divorced.

Challenges in Divorce and Immigration Cases 

The biggest challenge in divorce and immigration cases is that most cases involve a non-immigrant that uses “bad faith” (as one of the factors) as the grounds for the divorce. This becomes even more challenging if the non-resident partner enters into a settlement instead of moving the court. This is because once the case is settled, it is entered into the court records. Worse still, there is no way to undo the U.S. citizen spouse’s allegation that the marriage was entered into in bad faith (such as the marriage was conducted to obtain the green card) after the settlement is finalized.

It is, therefore, wise for the non-resident partner to move the court and try to prove that the marriage took place in good faith. This will help the non-resident partner to get the wrongful allegations cleared. The non-resident partner needs to work with an experienced and reputable lawyer as matters often get thorny for the immigrant spouse. Immigration laws are extremely complicated and it is almost impossible for one to navigate through the system without professional help.

Choosing Your Immigration Lawyer 

When choosing an immigration lawyer, bear the following in mind: Work with an experienced lawyer and not a consultant or notary. Make sure the lawyer you choose is a member of the American Immigration Lawyers' Association (AILA). Ensure the lawyer’s fee is within your reach. Understand the fee structure prior to hiring the lawyer. Look at the lawyer’s past history and ask for references. Work with a lawyer who makes you feel comfortable.

One more thing to remember is that it is always best to be honest with your lawyer and provide as much information about your case as possible. This helps him/her understand your points well and file a case accordingly. Immigration is a serious issue and the court will do its own investigations to discover the truth. If you lie or try to mislead the court in any way, you may face harsh consequences.

Protecting the immigration status of a non-resident filing for a divorce from a U.S. citizen spouse is never easy, but it is not impossible either. By working with the right lawyer, you can obtain your green card and continue being a U.S. resident.


Catherine Miller works as a content writer for Cleveland immigration law firm Hammond Law Group, LLC. She has a keen interest in the legal industry and specializes in writing articles about immigration-related matters, citizenship & naturalization as well as family law. www.eichorn-law.com.

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November 14, 2017
Categories:  Divorce and Annulment

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