An individual with a green card typically has unconditional, permanent resident status in the U.S. This residency status allows the individual to live and work in the U.S., but does not mean that he or she is a citizen. If you are married and in the U.S. on green card status, a divorce or annulment won't usually affect legal immigrant status, but there are situations in which your status could change your chances for future citizenship.
General Rules for Divorces Involving Green Cards
Because state court systems manage divorces, the marriage and the elements of the divorce decree impact how Immigration Services handles the immigrant spouse's future citizenship. Immigration Services has a two-year rule for 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 naturalization is an option.
The effect of a divorce on an immigrant's status in the U.S. is dependent on whether the divorce occurred before or after a green card was issued.
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 marriage to a U.S. citizen. This is because the divorce terminated the conditional permanent residence that was provided based on 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 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 or that the couple owned property.)
- They will undergo extreme hardship if deported
- 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 (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.
Exception to the Rule: Legal Separation
Immigration Services sometimes considers a legal separation to be the end of the marriage. 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.
Getting Help With Your Divorce
Because a divorce involving someone with a green card can have 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 the best way to proceed.