Legal Separation and Conditional Green Card

Jodee Redmond
A Green Card can be issued if a person is legally separated.

In a situation where legal separation and a conditional green card are involved, it complicates matters for the immigrant spouse somewhat.

Legal Separation

A legal separation doesn't officially end a couple's marriage. Instead, it is a formal agreement, recognized by the court, indicating that the couple's marriage has broken down and that they are leading separate lives. The same issues that are included in a divorce judgment can be dealt with in a legal separation agreement, including:

  • Division of marital property
  • Allocation of the couple's debts
  • Child custody
  • Child support
  • Visitation
  • Spousal support

Conditional Green Card

When someone marries a U.S. citizen, they can apply for permanent residency in the United States based on their marital status. It can take several months to over a year to have an application for a Green Card based on marriage processed. The length of time a person will need to wait will depend on how many other applications the local Immigration Office is dealing with. Once the application has been processed, the couple is invited to an interview. This discussion usually takes about a half hour. If the interviewer is satisfied that the marriage is valid and was not entered into solely for immigration purposes, then the approval for a conditional Green Card will be given immediately.

The conditional Green Card is valid for two years after it is issued. Within 90 days of the two-year anniversary, both spouses must sign an I-751 Form indicating that they are still married. If the couple has divorced or the U.S. citizen refuses to sign the form, then the non-U.S. citizen must demonstrate that he or she entered into the marriage in good faith.

Legal Separation and Conditional Green Card for Immigration Purposes

Here's how a situation with a legal separation and conditional Green Card plays out: Since a legal separation doesn't effectively end the marriage, the couple are still married for immigration purposes. The non-U.S. citizen may still be able to get a permanent Green Card even though they are no longer living together. The exception to this policy occurs when the legal separation is brought in a country or jurisdiction where the couple is considered to be divorced after a certain amount of time has passed.

If the U.S. citizen does not sign the I-751 Form, then the non-U.S. citizen must provide other evidence that the marriage was a valid one and not entered into solely for immigration purposes. He or she may be asked to sign an affidavit or provide other evidence, such the fact the couple owned property or had a child together.

Getting Legal Help

A marriage breaking down is a difficult situation for everyone involved, and when one of the parties is a non-U.S. citizen it does make things more complicated. In a situation where the marriage ends in divorce within two years of the conditional permanent residency status being granted, the non-U.S. resident is in danger of losing his or her immigration status based on the marriage. A waiver of the termination may be granted. Seeking expert legal advice from an immigration lawyer and a divorce attorney makes good sense. They can advise both people about their options in this situation. If the couple is on relatively good terms, they may be able to negotiate a legal separation that will decide the issues between them surrounding property, support obligations and child custody, while allowing the non-U.S. resident to still obtain his or her permanent Green Card in due course.

Legal Separation and Conditional Green Card