Every divorce is complicated and difficult – emotionally, financially, and legally. But if you came to the United States, married a U.S. citizen, and divorced before you obtained a green card, you will need the advice and guidance of an experienced Las Vegas immigration lawyer
Can you be denied a green card if you marry and then divorce a U.S. citizen? Could you be forced to leave the United States? Or can a good immigration attorney help you remain in the U.S.?
If you’ll keep reading, you are about to learn the answers to these questions, and you’ll also learn more about your rights – and the steps you must take – if you get divorced from a United States citizen before you can be approved for a green card.
DOES DIVORCE FROM A U.S. CITIZEN DISQUALIFY YOU FOR A GREEN CARD?
Nothing in the law says that a divorce from a United States citizen automatically ends your right or your ability to seek a green card. Nevertheless, a divorce from a U.S. citizen could have very negative consequences – including the possibility of removal. After a divorce from a United States citizen, who gets to seek a green card – and who doesn’t? For what reasons will an adjustment of status (a green card application) be denied to you after your divorce from a U.S. citizen?
WHY WOULD A GREEN CARD BE DENIED AFTER A DIVORCE?
One reason that a green card might be denied is if the applicant is likely to become dependent on public benefits after a divorce. In fact, your ex-spouse may have submitted an Affidavit of Support (Form I-864) as part of the process of bringing you to the United States.
An Affidavit of Support legally obligates the U.S. citizen who files it – your ex-spouse – to provide you with financial support at 125 percent of the current federal poverty level.
After a divorce, however, your ex-spouse can withdraw the Affidavit of Support. Finding a different sponsor to submit another Form I-864 won’t help and isn’t an option.
A 2018 Board of Immigration Appeals ruling affirms that if a support affidavit is withdrawn, you’ll be ineligible for an adjustment of status, and you can’t apply for a green card – unless you apply for a waiver and that waiver is approved. You’ll need an immigration lawyer’s help.
WHEN DO IMMIGRATION AUTHORITIES SUSPECT MARRIAGE FRAUD?
This policy prevents non-citizens from entering into phony marriages with United States citizens and then divorcing while a green card application is pending. U.S. Citizenship and Immigration Services (USCIS) aggressively investigates and prosecutes cases of suspected marriage fraud.
In fact, if you arrive in the United States, marry the U.S. citizen who sponsored you, and then quickly divorce that citizen, the immigration authorities will probably suspect marriage fraud.
HOW CAN YOU PROVE THAT YOU HAVEN’T COMMITTED MARRIAGE FRAUD?
However, you can request a waiver that – if approved – will let you continue to seek a green card. To be approved for this waiver, you will have to demonstrate that you are innocent of marriage fraud by proving one or more of the following:
- You entered the marriage in good faith. If you and your ex-spouse had a child together, jointly owned property, or jointly sought marriage counseling prior to your divorce, these are all indications that your marriage was a good faith marriage.
- You will suffer extreme hardship, political, ethnic, or religious persecution, or your life will be in danger if you are compelled to return to your home country.
- You were a victim of physical abuse or psychological cruelty during your marriage to a United States citizen.
If you received a “conditional” (two-year) green card before your divorce, you already have conditional permanent residence. You must submit Form I-751, Petition to Remove the Conditions of Residence, at least ninety days before your conditional green card expires.
CAN THE CONDITIONS BE REMOVED FROM A CONDITIONAL GREEN CARD?
There are five situations that allow conditional green card holders to seek to have the conditions on the conditional card removed. These conditions may be removed if you:
- are still married to the U.S. citizen at the end of the conditional 2-year period. (If your children received green cards when you did, they may be included on Form I-751.)
- are a child of a parent who has a conditional green card, and you cannot be included in that parent’s I-751 application
- entered the marriage in good faith, and your spouse is now deceased
- entered the marriage in good faith, and you or your child suffered hardship or abuse from your spouse
- entered into the marriage in good faith, but the marriage ended in annulment or divorce
Form I-751 includes a waiver request for those who have divorced their United States citizen spouses, but USCIS authorities will still want to see evidence that your marriage was in good faith and not a ruse concocted just to obtain a green card.
WHAT IF YOU HAVE A PERMANENT GREEN CARD BEFORE YOU DIVORCE?
If you were already in possession of a permanent green card prior to your divorce, the only immigration issue that may arise is a delay when you seek to become a naturalized United States citizen.
If your marriage to a U.S. citizen lasts less than three years, you will probably have to wait until you have five total years of permanent residence before you can apply for U.S. citizenship. If you remain married, you may apply for citizenship after three years rather than five.
Nevertheless, if you can prove that your marriage was not fraudulent, and if you have already been approved for a conditional or permanent green card, a divorce should not result in immigration penalties or in removal from the United States.
WHAT IF YOU ARE LEGALLY SEPARATED BUT NOT DIVORCED?
If you are legally separated, you and your spouse are still legally married for immigration purposes. A non-citizen spouse may be able to acquire a permanent green card even if a legal separation is in effect, but you’ll need advice and guidance from a good immigration attorney.
Everyone’s situation is different, and if you’ve read this far, it’s easy to see how complicated it can get if you are divorced from a U.S. citizen before you receive your green card. The requirements, waivers, and exceptions can be quite confusing.
WHEN SHOULD YOU SPEAK WITH A RELIABLE IMMIGRATION LAWYER?
That’s why you must have personalized advice from an experienced Las Vegas immigration lawyer who can explain exactly how the immigration requirements apply in your particular circumstances.
In fact, you should have the services and advice of a reliable U.S. immigration attorney from the moment you know that you’ll be marrying a U.S. citizen and coming to the United States. Every immigrant should have a good attorney’s advice as early as possible.
A divorce from a U.S. citizen doesn’t necessarily mean that you’ll have to leave the United States. If your marriage was bona fide, a good immigration lawyer will – in most cases – be able to help you stay in the U.S. Seeking a lawyer’s help is your right, and it’s the right thing to do.