How Can Divorce Affect the U.S. Immigration Process?

How Can Divorce Affect the Immigration Process?

Divorce can take a heavy toll on any individual regardless of citizenship status. While the decision to end a marriage is hard on most couples, it can be especially daunting for immigrants, as many non-citizens are only permitted to be in the U.S. on a temporary or conditional basis.

It’s normal for recent or soon-to-be divorcés to feel concerned about their immigration status during the dissolution of marriage, especially if their status is dependent on their spouse (or vice versa).

Given the time-consuming complexities of the U.S. immigration process, it’s no surprise that familial and marital conflicts can amplify a person’s stress levels. Fortunately, there are various strategies that non-citizens can employ to combat immigration-related issues that arise as a result of divorce.

Keep in mind that while it can be beneficial to learn more about U.S. immigration processes on your own, it’s best to consult with a trusted immigration attorney, as they can provide the professional legal counsel and advocacy you require to obtain a favorable outcome in court.

Effects of Divorce on Green Card Holders

The ways in which divorce can impact an individual’s immigration status, if any, is dependent on that person’s unique circumstances, such as:

  • Whether or not the individual is a conditional resident;
  • Whether their status is dependent on their spouse; and/or
  • How far along the person is in the U.S. immigration process (if applicable).

Divorce & Green Card Holders with Permanent Residency

For many green card holders, their immigration status is unaffected by divorce. This is the case for green card holders who are already lawful permanent residents (LPRs) in the United States. In these instances, it’s extremely unlikely that a change in marital status will affect the immigration status of such individuals.

However, while the immigration status of green card holders with lawful permanent residence is unaffected by divorce, it’s worth noting that divorce can affect an individual’s ability to apply for naturalization.

In such cases, the divorced petitioner will be required to wait 5 years after acquiring their green card to apply for naturalization, as opposed to 3 years for green card holders who stay married.

Divorce & Green Card Holders with Conditional Residency

While some green card holders may be unaffected by divorce, this isn’t the case for all. Those who obtain lawful U.S. residence through a marriage-based green card are more likely to encounter obstacles on the path to naturalization.

If your immigration status is dependent on a spouse’s status, visa, or pending application, you may be more likely to experience setbacks during the U.S. immigration process after a divorce. However, these hurdles are by no means impossible to clear.

“Conditional” Marriage-Based Green Cards

In the event that a petitioner obtains a marriage-based green card through a spouse to whom they’ve been married for less than 2 years, the petitioner may be granted conditional residence rather than permanent residence.

This is partly because marriage-based green card applications are scrutinized closely by the USICS to prevent fraud. Moreover, recent unions tend to invoke more suspicion than more established marriages.

While conditional residents enjoy most of the same perks as permanent residents, the key difference between conditional and permanent residency is the 2-year testing period.

Assuming there is enough evidence that the marriage is legitimate and ongoing by the time this testing period expires, conditional residents with marriage-based green cards will become eligible to apply for permanent residence.

If the individual’s marriage has endured for a minimum of 2 years by the time they arrive in the U.S. with a visa or receive approval for a green card, there’s no need to worry about the potential negative effects of divorce on immigration status.

Can Conditional Residents Apply for Permanent Residence After Divorce?

While it can be difficult to obtain lawful permanent residence in the U.S. after a divorce, it isn’t impossible. Divorced conditional residents can expect to meet the same criteria as still-married individuals petitioning for lawful permanent residency, as they will need to prove to the USCIS that:

  • They entered the marriage in good faith;
  • They intended the marriage to last; and
  • They intended to live with their spouse for the duration of the marriage.

Applicants should take adequate time to prepare for all USCIS appointments and interviews, as sufficient proof is required to prove that the marriage was bona fide (Latin for “in good faith”) prior to the divorce.

Common forms of evidence include lease agreements, mortgage deeds, joint bank accounts, joint credit card statements, joint insurance coverage, and other documentation to illustrate an authentic, bona fide marriage.

What Steps Must Conditional Residents Take to Acquire Permanent Residency?

Yes. For conditional residents whose marriage ended within 2 years of acquiring a marriage-based green card, hope is not yet lost, as there are steps you can take as a divorced conditional resident to obtain lawful permanent residence in the U.S.

The first and most important step to obtain permanent residence as a conditional resident after divorce is to file a Petition to Remove the Conditions of Residence (Form I-751). While completing this form is usually a joint effort by both spouses, newly single conditional residents are permitted to submit I-751 on their own under certain conditions by filing a waiver.

Keep in mind that divorcés who wish to submit Form I-751 by themselves will likely face more setbacks than married couples who file together, as the USCIS requires substantial evidence that the applicant“would suffer extreme hardship” if denied permanent residency.

Divorce is considered an acceptable ground to file this waiver. Assuming the petitioner is successful, they can receive permanent residence without a spouse’s signature. It’s important for petitioners to understand that their divorce must be finalized before a solo applicant can file Form I-751.

Here to Help Make Your American Dream a Reality

At Maghzi Law Firm, LLC, the wellbeing of our clients is our top priority. Our firm’s passion for helping others stems from the deep-rooted desire to change people’s lives for the better.

We know firsthand how frustrating it can be to navigate the confusion and complexities of U.S. immigration law. The legal process can often be overwhelming and even dehumanizing for many people. Sadly, many applicants are ultimately faced with rejection.

That’s why our compassionate team is here to align ourselves with your personal goals and guide your legal steps according to your unique needs. Whether you require assistance with removal orders, applying for naturalization, or sponsoring a relative to join you in the U.S., our firm can offer the compassion and professional insight you need to be successful in court.

As an immigrant herself, our founding attorney has extensive experience navigating the trappings and pitfalls of U.S. immigration laws. When it comes to keeping yourself and your loved ones safe and well, don’t settle for less than passionate legal advocacy.

If you’re applying for lawful permanent residence in the U.S., you deserve dependable legal representation. Call (843) 800-2750 to request a consultation with a skilled immigration lawyer in South Carolina. 

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