Green Card Divorce

By Yvette Robinson

Green card divorces have significant consequences depending on your immigration status. While the divorce process is handled by the courts in the state you live in, the immigration process is handled by the federal government’s United States Citizenship and Immigration Services Office.

If the state court finalizes a divorce, the marriage no longer exists for immigration law purposes.

Sometimes, even before the divorce is finalized, a legal separation is considered the termination of the marriage for immigration law purposes. This happens when the state law automatically makes the legal separation a divorce after a specified period of time.

Divorce After Green Card Issued

When a person has their green card, they have unconditional permanent residence in the U.S. A green card divorce does not change a spouse’s immigration status after the spouse obtains their green card. The only effect green card divorce may have on an immigrant with a green card is that it may delay full citizenship.

When the immigrant is divorced before being married to a U.S. citizen for at least three years and the immigrant has not had her green card for five years, then the immigrant must wait until she has had her green card for five years before she can apply for full U.S. citizenship.

Divorce Before Green Card Issued

Conditional permanent residence means that the permanent residence can be terminated if it is determined that the marriage was a sham. The marriage is considered a sham when the spouses marry for the green card. The marriage is not a sham if the spouses married for any other reason and the marriage took place within two years before the immigrant was given a green card. Before the two-year anniversary of the permanent residence being given to the immigrant, both the immigrant and spouse must file a joint petition to remove the conditions.

However, if the immigrant spouse is divorcing the U.S. citizen spouse, then the relationship may have deteriorated to a point where the U.S. citizen spouse does not agree file the joint petition to remove the conditions. This is when a green card divorce causes the most problems. The immigrant spouse must then file for a waiver from the joint petition rule.

If the divorce is finalized before the green card is issued, the immigrant spouse cannot get a green card based on the marriage. This is because the divorce terminated the conditional permanent residence.

But, the immigrant can also get a waiver of this termination. A waiver of the termination is granted if the marriage was in good faith and the immigrant was not at fault for failing to file the joint petition to remove the condition.

Applying for a Waiver

The immigrant spouse must prove grounds for the waiver. The following are grounds for a waiver of termination:

• Good faith marriage (if the divorce is finalized when you file for the waiver). A good faith marriage can be proved by showing that the couple had a child and that the couple owned property. You will also need to file a copy of the final divorce decree.
• Extreme hardship to the immigrant spouse if deported.
• Extreme cruelty and abuse from the U.S. citizen spouse.

Waivers often require an interview of the immigrant spouse to get approval.

Children of a Divorcing Immigrant

A green card divorce not only affects the couple but also any children of the immigrant. If the divorce is finalized before a green card is issued, the children of a divorcing immigrant will not get a green card based on that marriage.

However, this law only applies to the children of the immigrant spouse who obtain a green card based on the marriage of their parents. If the children obtain a green card on any other basis, the divorce of their parents will not affect their status.

Getting Help for Your Green Card Divorce

Because a green card divorce has significant immigration consequences, both an immigration attorney and divorce attorney should be consulted. For help with the U.S. Citizenship and Immigration Services office, Accredited Representatives of a Recognized Organization (such as local legal aid clinics) may assist the divorcing immigrant for a nominal fee compared to the fees charged by attorneys.

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