Will Getting a Divorce Affect My Ability to Remove the Conditions on my Green Card?

Unfortunately, despite great effort, not all marriages last. Although divorce rates are dropping in the United States, we are still a country with one of the highest divorce rates (50%) in the world. Moreover, this statistic is not exclusive to only marriages between two U.S. citizens; of course, non-citizen green card holders are included in the rate calculations. In a previous post, we covered the I-751 Petition and the process to remove the conditions on your green card. For conditional green card holders who are able to file jointly with their spouse, they should do so within 90 days of the expiration of the non-citizen spouse's green card to avoid any complications or a loss of status. For couples who are divorced or in the process of getting divorced, this post is for you.

When a couple reaches the difficult decision to seek divorce, there are countless consequences and ramifications that will result, including financial disputes, child custody issues and settlement of jointly owned property. For conditional green card holders, another complicated layer is added to the mix as their status could be jeopardized by losing the relationship (marriage to a U.S. citizen or green card holder) that formed the basis for their green card petition. As we shared in our prior post, filing the I-751 petition is a mandatory requirement to remove the conditions on your green card. Traditional petitions are filed jointly and both spouses must appear at the interview (if requested by USCIS).

However, the non-citizen spouse may request a waiver of the joint-filing requirement if they can prove any of the following circumstances:

The marriage was entered into in good faith, but the marriage has terminated or the petitioner has died;
The marriage was entered into in good faith, but the conditional resident or the conditional resident's child was subject to abuse; or
Termination of conditional residence would cause extreme hardship to the conditional green card holder

For anyone seeking a waiver of the joint filing requirement that can prove any of the above, they may file the I-751 at any point and do not need to wait until 90 days before the green card expires as is the case for a joint filing. Furthermore, you may file under multiple circumstances above, if they are applicable. For the purposes of this post, we'll just cover the circumstance involving divorces.

THE COUPLE IS DIVORCED BEFORE THE EXPIRATION OF THE CONDITIONAL RESIDENT'S GREEN CARD

In this circumstance, the conditional resident will still be required to show that the marriage was bona fide (i.e., entered in good faith) despite the fact that it did not last more than 2 years. Similar to the documentation provided for the initial I-130 petition, the conditional resident will need to submit evidence proving the legitimacy of the marriage. Since USCIS will place greater scrutiny on these applications it is crucial that you submit as much evidence as possible, showing that the marriage was legitimate.

Furthermore, the conditional resident must include a declaration explaining the breakdown of the marriage and their commitment to holding the marriage together. If the citizen/resident spouse caused the dissolution of the marriage (i.e., abuse, affair, abandonment, etc.) and there is evidence of this, it should also be included. In addition, the conditional resident must also submit the final divorce decree with the I-751 petition. If USCIS agrees with the submitted evidence and accepts the divorce decree, the I-751 petition will be approved and the conditional resident will receive a full 10 year green card in the mail.

THE COUPLE IS IN DIVORCE PROCEEDINGS PRIOR TO THE EXPIRATION OF THE CONDITIONAL RESIDENT'S GREEN CARD

In this situation, if the conditional resident submits the I-751 petition before the final divorce decree is issued, USCIS will send a Request for Evidence (RFE) seeking a copy of the divorce decree. If you cannot provide it because the proceedings are still pending USCIS will deny the petition. For this reason, it is typically suggested that you file under multiple circumstances (if applicable), especially extreme hardship, to ensure that you have several avenues for approval. In terms of evidence, the conditional resident will still need to provide evidence of the legitimacy of the marriage, a declaration and if applying under multiple circumstances (e.g., extreme hardship, abuse), evidence showing extreme hardship, abuse, etc.

Depending on the status of your divorce, it may or may not affect your ability to remove the conditions on your green card. Certainly, having a final divorce decree before filing the I-751 is ideal, but that is not always the way situations pan out. If you have any questions about the petition to remove conditions or waiver of the joint filing requirement, please do not hesitate to give us a call at (212) 547-8857 or schedule a consultation online and we'd be happy to discuss these issues further and help you reach a resolution. Our experienced immigration attorneys are here to provide the advice you need.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.