Divorce does not affect every immigration application in the same way. The result depends on why you qualify for immigration status, whether your application is still pending, and whether you already have a two-year or ten-year green card.
If your immigration case is based on your marriage, a divorce can create serious problems. However, it does not always mean that you must leave the United States or give up your immigration plans. You may have another legal option.
“Divorce can change the path of an immigration case, but it does not always end the journey. The most important step is to understand your options before you file, withdraw documents, miss a deadline, or make a decision that may be difficult to correct.”
– Ifeoma Odunlami, Founder and Principal Attorney, Odunlami Law
The First Question: Is Your Immigration Application Based on Your Marriage?
Start by identifying the basis of your application.
A divorce is most likely to affect your case if:
- Your spouse filed Form I-130 for you
- You have a pending marriage-based green card application
- You received a two-year conditional green card through your marriage
- You are applying for citizenship under the three-year rule for spouses of U.S. citizens
- You are included as a dependent spouse on another person’s immigration application
A divorce may have little or no direct effect if you have an independent basis for your status, such as your own employment petition, asylum application, U visa, T visa, or another qualifying family relationship. Every case is different, so you should not assume that divorce either ends your case or has no effect on it.
What Happens If You Divorce While Your Marriage-Based Green Card Application Is Pending?
A marriage-based green card requires a legally valid marriage. If your divorce becomes final before USCIS approves your case, you normally lose the qualifying spousal relationship.
This means USCIS generally cannot approve:
- The Form I-130 filed by your former spouse
- A Form I-485 based only on that marriage
- An immigrant visa application based on that marriage
USCIS explains that a person seeking a green card as the immediate relative of a U.S. citizen must qualify as that citizen’s spouse. Its green card guidance for immediate relatives also requires evidence of the marriage and evidence that all previous marriages were legally terminated.
Simply separating from your spouse is different from getting divorced. A separation does not legally end the marriage. However, it may cause USCIS to ask whether the marriage is still genuine and whether the couple originally married in good faith.
If you are separated, considering divorce, or already involved in divorce proceedings, speak with an immigration attorney before your USCIS interview or final divorce hearing.
WATCH: If you obtained a green card as a result of marriage, what happens to it if you get divorced?
What If Your Spouse Withdraws the I-130 Petition?
The U.S. citizen or lawful permanent resident who filed an I-130 petition can ask USCIS to withdraw it. If the petition is withdrawn before you receive permanent residence, your related green card application may no longer have a valid basis.
A spouse’s threat to withdraw an immigration petition can also be used as a form of control. If your spouse has abused, threatened, or controlled you, you may have options that do not require your spouse’s cooperation.
Odunlami Law helps clients understand their rights under the Violence Against Women Act, commonly called VAWA. Despite its name, VAWA protections may be available to eligible people of any gender.
What Happens If You Have a Two-Year Conditional Green Card?
If you received permanent residence before your second wedding anniversary, you likely received a conditional green card that is valid for two years.
Normally, you and your spouse file Form I-751, Petition to Remove Conditions on Residence, together. Divorce may prevent you from filing jointly, but USCIS allows certain conditional residents to request a waiver of the joint filing requirement.
You may be able to file Form I-751 without your former spouse if:
- You entered the marriage in good faith, but the marriage ended in divorce or annulment
- You or your child experienced battery or extreme cruelty
- Losing permanent resident status and leaving the United States would cause extreme hardship
- Your petitioning spouse died
For a divorce waiver, you must still prove that you entered the marriage honestly and intended to build a life together. USCIS may consider evidence such as:
- Joint bank and credit card statements
- A joint lease, mortgage, or property records
- Joint tax returns
- Insurance policies
- Birth certificates of children born during the marriage
- Photos, travel records, correspondence, and other records of your shared life
- Statements from people who knew you as a couple
- Evidence explaining why the marriage ended
USCIS provides more information in its guidance on waivers of the I-751 joint filing requirement.
Do not wait until the last minute to address your I-751. The timing of the divorce and the status of your family court case can affect how your petition should be filed.
What If You Already Have a Ten-Year Green Card?
Divorce does not automatically cancel a ten-year green card. You remain a lawful permanent resident unless you abandon your status, become subject to removal for another legal reason, or lose your status through a separate immigration proceeding.
However, a future immigration application may cause USCIS to review your earlier marriage. This may happen when you:
- Apply for U.S. citizenship
- Petition for a new spouse
- Answer questions about your immigration history
- Face allegations that the earlier marriage was not genuine
Keep records showing that your marriage was entered in good faith, even after your divorce is complete.
Can Divorce Affect a Citizenship Application?
Many lawful permanent residents may apply for naturalization after five years. Some people married to U.S. citizens may qualify after three years, but the shorter period has additional requirements.
USCIS generally requires an applicant using the three-year rule to have lived in marital union with the U.S. citizen spouse for the required period. Divorce before naturalization may mean that the applicant no longer qualifies under this rule and must wait until eligible under the regular five-year rule.
The USCIS Policy Manual explains the marriage and marital-union requirements for naturalization and the requirements for spouses of U.S. citizens applying under the three-year provision.
If you have already filed Form N-400 and are now separated or divorced, obtain legal advice before your interview.
What If You Are a Dependent on Your Spouse’s Application?
Some immigrants qualify as derivative beneficiaries through a spouse’s employment-based or family-preference case. In those cases, the marital relationship generally must continue until the derivative spouse becomes a permanent resident.
USCIS states that the relationship between a principal applicant and a derivative beneficiary must normally continue to exist when permanent residence is granted.
Therefore, a divorce finalized while the applications are pending may cause the dependent spouse to lose eligibility through the principal applicant. The dependent spouse should immediately determine whether another independent immigration option is available.
A divorce normally will not harm the principal applicant’s case if the principal applicant qualifies independently.
Can a Survivor of Abuse Still Apply Under VAWA After Divorce?
Possibly. An eligible abused spouse may be able to file a VAWA self-petition without the abusive spouse’s knowledge or cooperation.
USCIS explains that a former spouse may still qualify in certain cases if the marriage ended within two years before the VAWA petition was filed and the divorce is connected to the abuse. Review USCIS’s questions and answers for abused spouses, children, and parents for more information.
Do not remain in an unsafe situation because you believe your spouse has complete control over your immigration future. Speak privately with an attorney about your rights and safety.
Before You File for Divorce, Review Both Legal Cases
Immigration law is federal, but divorce is controlled by state law. Decisions made in family court may affect the timing, evidence, and strategy in your immigration case.
Before filing for divorce, gather copies of:
- Your current and expired immigration documents
- Every form and document submitted to USCIS
- USCIS receipt, approval, and interview notices
- Your marriage certificate
- Any previous divorce decrees
- Records showing that your marriage was genuine
- Your spouse’s immigration or citizenship information, if available
- Any police reports, medical records, threatening messages, or other evidence of abuse
New Jersey residents can learn more in our guide to divorce and immigration status in New Jersey or speak with our New Jersey divorce attorney.
Frequently Asked Questions About Divorce and Immigration Applications
1. Will USCIS deny my green card if I get divorced?
If your pending green card application is based only on your marriage, a final divorce will normally end the qualifying relationship and prevent approval. If you already have conditional permanent residence, you may be able to request an I-751 divorce waiver.
2. Is separation the same as divorce for immigration purposes?
No. Separation does not legally terminate a marriage. However, separation may cause USCIS to examine whether the marriage was genuine and whether the couple still qualifies for the requested immigration benefit.
3. Can I remove the conditions on my green card without my spouse?
Possibly. USCIS allows eligible conditional residents to request a waiver of the joint I-751 filing requirement. You must qualify for a waiver and provide supporting evidence. A person using a divorce waiver must generally prove that the marriage was entered in good faith.
4. Will divorce cause me to lose my ten-year green card?
Not automatically. Divorce by itself normally does not cancel a ten-year green card. USCIS may still review the marriage during a future citizenship application or another immigration proceeding.
5. Should I tell USCIS that I am divorced?
You must give USCIS truthful, current information when marital status affects your eligibility or when a form, interview, or request asks for it. Hiding a divorce or making a false statement can create much more serious immigration problems.
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Divorce and immigration law can overlap in complicated ways. The safest strategy depends on your current status, the type of application you filed, the timing of your divorce, and the evidence available in your case.
Odunlami Law represents immigration clients in all 50 states and abroad. The firm also provides select family law services to clients in New Jersey, including matters in which divorce and immigration law intersect.
If you are considering divorce, have received divorce papers, or are worried that your spouse may withdraw an immigration petition, contact Odunlami Law to discuss your options before taking your next step.
This article provides general information and is not legal advice. Immigration and family law outcomes depend on the specific facts of each case.
