man taking off his wedding ring
By: Katherine On: December 8, 2016 In: Family-Based, Immigration Comments: 5
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Divorce is complicated enough — but it becomes even more complicated when the end of your marriage could affect your immigration status.

If you’re getting a green card through your spouse but you divorce before becoming a permanent resident, will immigration officials void your application?

Divorce, Foreign-Born Spouses & Green Cards

The Center for Immigration Studies estimates that close to 400,000 US citizens marry foreign nationals each year. These US citizens must take steps to secure green cards for their foreign-born spouses.

Immigration law classifies spouses of US citizens as “immediate relatives.” Immediate relatives of US citizens have a much faster route to getting a green card than most other US immigrants.

While you may not want to dwell on what seems like an unpleasant or unlikely situation, it is important to be aware of the ways the divorce process can affect your immigration status.

Without a US citizen sponsor, an application for permanent residency may be denied.

Divorced & Staying in the US

While it seems like a divorce may lead to a denied petition or even deportation, most foreign-born spouses going through the divorce process will be granted conditional permanent residence if they do not choose to withdraw their immigration application.

How is this possible? By filing a waiver.

If you were in the process of getting a green card before the marriage ended, you will not be able to secure one based on marriage. However, if the marriage was a good faith union, you can apply for a waiver of termination.

One or more of the following criteria must be met for the waiver to be valid and accepted by US Citizenship and Immigration Services (USCIS):

  • Proof that the marital union was valid, such as photographs, evidence of shared property or leases, joint bills and other evidence of a life together.
  • Proof that the immigrant spouse will suffer extreme hardship if sent back to his or her country of origin, such as a statement about the life built in the US thus far.
  • Proof of having suffered extreme cruelty or abuse from a US citizen spouse, which can include sworn statements and affidavits from neighbors and family members.

Note that any documents submitted to USCIS in a language other than English must be accompanied by a certified translation.

Examples of the above proof along with the waiver will establish that the marriage was valid and that you should not be denied permanent resident status.

If you have already obtained a conditional green card before the marriage ends, you have conditional permanent residence. You will need to file Form I-751, Petition to Remove the Conditions of Residence, before your first green card expires.

Form I-751 has a built-in waiver for those who have divorced their US citizen spouses, but USCIS will still require proof that your union was a good faith relationship and not just for immigration purposes.

If you have already obtained unconditional permanent residence before your divorce, the only immigration issue that may occur is a delay in obtaining full citizenship status.

If your marriage to a US citizen ends within a period of three years, you may have to wait until you reach five total years of permanent residence before being able to file an application to get rid of your immigration status once and for all and become a US citizen.

Therefore, as long as your marriage was not fraudulent, divorce should not affect the immigration process.

Note: This page is for general informational purposes only. LLS cannot give personal advice to any individual regarding immigration status. Please contact USCIS with any questions.

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    • Emmanuel Appiah
    • June 10, 2017
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    Hello am Emmanuel, I just got married to my wife who is a us citizen and works for the state as nurse. But before our marriage she had married and divorce 4 years ago. Our marriage was this year on the 28 and 29 of April, 2017 in Ghana. What I want to know is that can he file for me and when can he do that? Thank you so much.

    • debi
    • July 20, 2017
    • Reply

    what are your options if you marry someone and find out 5 years later that they married for citizenship and you divorce???

      • Emily
      • August 27, 2017
      • Reply

      When you find out, let me know because I’m going through that myself. I sponsored my husband from 2010 til he got his citizen in 2016. Eleven months later, he’s divorcing me. During our marriage he was certain to buy “separate property” (with marital funds) to have himself all set up. I feel like such a fool.

    • Nusrat jahan
    • August 01, 2017
    • Reply

    I am married a citizenin 2016.about one year.he apply petition for me.we are not live together because his Family does not like me.he is only one son that’s why he doesn’t leave his family and stay with me.that why we decided until his family will accept me.we live different places.he is citizens from new York .so he live in new York and I live in california.we rent a room in california together sometime he comes to meet me and sometimes I am going to new York. he apply petition for me this January 2017 in california.so can i get green card.without stay together long time.I have evidence of bank account,life insurance,lease document.marriage certificate,together photos,lots of people know us.now immigration send a letter for evidence.we send this paper.my marriage is not fraud.it’s a real marriage.but only problem his family.in love him,and he loves me.plz let me know about my getting green card.

    • Mitchell Krulock
    • August 02, 2017
    • Reply

    Hello, I am a US Marine who recently transferred back to the US from my 2 year tour in Okinawa Japan and my Japanese fiancé holds a permanent resident status from her previous marriage to another Marine. In 2011 they had married, in 2012 she gained her temp visa and moved to the US, in 2013 they were ordered back to Okinawa, in 2015 she gained her permanent resident status as she was considered still in US territory due to being married to a US Marine. He cheated on her around 6 months later and and they separated trying to work it out then divorced in Oct 2016. She wants to come back to the US and her marriage ending was beyond her control.

    She has been out of US territory for as of now, 10 months with 2 to go before we are required to file for a Returning Resident Visa in order for her to be able to return to the US. She has 3 kids as well from that previous marriage, all 3 are US citizens. The problem is I don’t know if they will allow her to return while not having any family ties or work in the US.

    My questions are these: Is she able to return to the US on her own without USCIS and the State Dep denying her due to no ties to the US after filing a Returning resident Visa that states no ties to the US? Can she return having married someone else(me in the future) and have it written in on the Returning Resident Visa form INSTEAD of her now previous husband? Will they deny her returning because of that? Does she have to file to change her status first from married to single? Is her return possible this way or do we have to go through the process of marriage and then applying for a temp visa all over again and then a new green card(permanent resident status) afterward?

    I appreciate any information you can give me.

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