Divorce is hard for anyone. The constant triggers and the dismantling of everything you’ve spent years building. Divorce is even more challenging when you’re an immigrant working on becoming a lawful permanent resident in the United States.
If you’re an immigrant trying to get a permanent green card and you’re going through a divorce, you’ll need to notify United States Citizenship and Immigration Services (USCIS). An experienced divorce attorney can help make sure you follow the process to become a U.S. citizen properly.
Divorce has different effects depending on your current immigration status. An immigrant’s green card application to become a lawful permanent resident can face severe difficulties due to a separation or pending divorce. To completely understand how a divorce affects the immigration process, you should contact an experienced immigration attorney for help.
If you receive a green card through marriage, it will either be a ten-year permanent renewable green card or a two-year conditional green card. An immigrant who arrives on a K-1 fiance visa applies to change their status and is accepted will initially be a conditional permanent resident status or a temporary green card holder.
To become a permanent resident (Petition to Remove Conditions of Residence), you must submit Form I-751 to the USCIS. This paperwork must be submitted within 90 days before your green card expiration date. Usually, this form is offered jointly by both spouses, along with documentation demonstrating their continued marital status. However, if the marriage has already been dissolved per state law, you may file the I-751 on your own by submitting the I-751 waiver.
To qualify for a green card after a divorce, you must provide proof that you were married “in good faith.” You do this to prove to USCIS that you didn’t commit marriage fraud or that you didn’t get married just to get lawful permanent resident status. A good immigration lawyer or divorce attorney can help you gather evidence to show that your marriage was legitimate. A good immigration attorney helps you prove this by submitting records demonstrating that you and your ex-spouse led a typical married life before the separation or divorce. These records could include a joint bank account, a joint lease or mortgage, etc.
These are the documents that you will need to notify the USCIS of a pending divorce case:
As part of the non-citizen spouse’s I-751 application, USCIS will want a copy of the divorce judgment or marital settlement agreement.
There is a gray area—you are still married, but you have begun the process. If you and your lawful permanent resident spouse are in the process of getting divorced, they likely will not want to complete and file the I-751 with you. In this case, it is advised that you complete it on your own. Additionally, in this case, you must provide proof that you or your spouse began the divorce process, but your divorce has not yet been legally settled.
Typically, USCIS will mail you a notice in this situation extending your conditional residence status for an additional year. After this year, you will receive a Request For Evidence (RFE). This is a request for additional documentation, which will include the final divorce decree. It implies that additional data is required before the USCIS officer examining your application may reach a conclusion.
Per the USCIS policy manual, the RFE will include the following:
An RFE does not guarantee that your application will be approved, nor does it increase the likelihood that it would be rejected than if you had not received the RFE.
You are required to notify USCIS of the divorce proceedings via Form I-751 and the accompanying I-751 waiver. This can be intimidating, especially if you had a conditional green card based on marriage.
A divorce can add some hurdles to the green card process, but it won’t necessarily prevent you from reaching the finish line. You must show that your marriage was in “good faith”—meaning you did not enter the union solely to receive a green card. You can do this by providing joint financial records and proof of shared residence. You must also submit a written statement detailing why your marriage ended.