An individual with a green card has unconditional, permanent resident status in the U.S. This residency status allows the individual to live in the nation, but does not mean that the United States Citizenship and Immigration Services Office views him or her as a U.S. citizen. Therefore, a divorce between spouses in which one is in the U.S. on green card status may affect that spouse's receiving full citizenship status.
Green Cards and Divorce
The divorce of spouses in which one spouse came to the U.S. under a green card can result in the immigrant spouse retaining their legal immigrant status or in their deportation. Although divorces are handled by state court systems, the facts of the marriage and elements of the divorce decree impact how Immigration Services handles the immigrant spouse's future citizenship. Generally, when a state court issues a divorce decree, the marriage no longer exists for immigration law purposes.
Exception to the Rule
Sometimes, Immigration Services considers a legal separation as the end of a marriage. This could occur when the marriage lasted only a short time. This rule exists to prevent spouses from living separately for a lengthy period of time before officially divorcing, so that one spouse can retain their green card. Usually, this is the case in sham marriages, in which spouses marry solely to obtain a green card.
General Rules for Divorces Involving Green Cards
Immigration Services has a two year rule for marriages: marriages entered into two years before one spouse files a request for a green card are not considered sham marriages. When a green card request is filed less than two years into the marriage, the agency places conditions on the marriage. These conditions require that the spouses remain married for three years under green card status before the spouse can be considered for citizenship.
The effect of a divorce on an immigrant's status in the U.S. depends on whether the divorce occurred prior to or after a green card was issued. In general:
Divorce Before Green Card Issuance
If the divorce is finalized before a green card is issued, the immigrant spouse cannot receive a green card based on their being married to a U.S. citizen. This is because the divorce terminated the conditional permanent residence that was based on their being a spouse of a U.S. resident. Therefore, the spouse would not receive a green card and would be unable to become a U.S. citizen. This rule primarily exists to prevent individuals from entering into sham marriages and divorcing while a green card application is pending.
Divorce requests filed prior to the expiration of the waiting period may not result in the immigrant spouse's receiving a green card. However, the spouse may file a waiver request. To obtain a waiver, the spouse must show:
- The marriage was entered into in good faith before the divorce was finalized. A good faith marriage can be proven by showing that the couple had a child and that the couple owned property.
- They will undergo extreme hardship if deported or,
- The presence of extreme cruelty or abuse by the U.S. citizen spouse against the immigrant spouse.
A copy of the final divorce decree must accompany this claim. The spouse may also be interviewed.
Divorce After Green Card Issuance
A resident spouse, meaning the spouse in the U.S. having green card status, who divorces their naturalized-citizen spouse less than three years after marrying must wait an additional two years before applying for full U.S. citizenship.
Getting Help for Your Green Card Divorce
Because a divorce involving a green card has significant immigration consequences, consider seeking legal advice. An attorney will review the facts of your marriage and your or your spouse's immigrant status and discuss with you how to proceed.