An alien may obtain U.S. permanent resident status (i.e. a green card) to live and work in the United States on a permanent basis by marrying a U.S. citizen, a lawful U.S. permanent resident or a beneficiary of an immigrant petition. The alien spouse should consider the potential effects a divorce may have on his or her immigration status.
There are three scenarios in which divorce may adversely impact an alien’s immigration status:
- Divorce occurring before permanent residence status is conferred
- Divorce after the receipt of a conditional green card
- Divorce after the receipt of an unconditional green card
Alien Spouse Does Not Have U.S. Permanent Residence Status
An alien spouse may obtain permanent resident status through the sponsorship of his or her U.S. citizen or lawful U.S. permanent resident spouse as a result of marriage. However, if the marriage is ended through divorce or annulment and U.S. permanent resident status has not yet been granted to the alien spouse, the alien spouse is not eligible to adjust status to U.S. permanent resident. Marriage is the basis for granting of the alien spouse’s green card. A divorce terminating the legal marriage also terminates the alien spouse’s eligibility for U.S. permanent resident status on the basis of that marriage.
Alien Spouse Has a Conditional Green Card
If the alien spouse has already been granted a conditional permanent resident card through marriage, his or her permanent residence may be revoked if the divorce occurs within two years from the date the conditional green card was granted. The conditional resident and his or her spouse must apply jointly to remove the condition on the alien spouse’s U.S. permanent residence by filing a joint petition with the U.S. Citizenship and Immigration Services (USCIS) during the 90-day period immediately preceding the second anniversary of the alien spouse receiving conditional permanent residence. If the joint petition is timely filed and the USCIS is convinced that the marriage is still viable, the alien spouse will have the condition removed from his or her U.S. permanent residence.
In the event that the couple has divorced, then a joint petition cannot be filed and the alien spouse must file for a waiver of the joint petition filing requirement. Failure to file for the waiver would ultimately result in the alien spouse being placed in deportation proceedings. A copy of the divorce decree must be filed with the waiver application along with documentation demonstrating that the marriage was entered into in good faith. Such documentation could take the form of joint financial ties established by the couple during the marriage such as joint bank accounts, joint credit cards, joint car titles, joint real estate holdings, joint insurance, etc., as well as affidavits from mutual friends of the couple attesting to the good faith of the marriage. If USCIS is convinced that the marriage was entered into in good faith, the waiver will be granted and the condition removed from the alien’s U.S. permanent residence.
Alien Spouse Has an Unconditional Green Card
If the alien spouse has received an unconditional green card, a divorce would have no negative impact on the green card itself. However, if a divorce occurs prior to the alien’s application for U.S. citizenship, the alien must have been a U.S. permanent resident for 4 years and 9 months before he or she is eligible to apply for citizenship. If the marriage were to remain intact then the alien spouse must maintain U.S. permanent resident status for only 2 years and 9 months before being eligible to apply for U.S. citizenship. So, where the alien has an unconditional green card, the divorce does not affect the green card but can affect the length of time the alien must be in U.S. permanent resident status before being eligible to apply for U.S. citizenship.