Divorce can be stressful for anyone. For an immigrant, it may also bring an urgent question:
Will I lose my green card if my marriage ends?
The answer depends largely on where you are in the immigration process. A divorce does not automatically cancel every green card. However, it can affect a pending marriage-based application, a two-year conditional green card, and when you may qualify for U.S. citizenship.
Understanding your status before filing for divorce can help you protect your immigration future.
Does Divorce Automatically Cancel a Green Card?
No. Divorce does not automatically cancel lawful permanent resident status.
The effect of divorce depends on whether you:
- Have a marriage-based green card application still pending
- Have a two-year conditional green card
- Have a ten-year green card
- Plan to apply for U.S. citizenship based on your marriage
- Are experiencing abuse or extreme cruelty in your marriage
Each situation has different immigration rules and deadlines.
“Immigrants should never feel forced to remain in an unhealthy or unsafe marriage because they are afraid of losing their legal status. Divorce may change the immigration process, but it does not always end it. The most important step is to understand your options before making decisions that may affect both your family and your future in the United States.”
– Ifeoma Odunlami, Esq., Founder and Principal Attorney of Odunlami Law
If Your Marriage-Based Green Card Application Is Still Pending
If your spouse filed a marriage-based immigration petition for you and the divorce becomes final before USCIS approves your green card, you may no longer qualify as that person’s spouse.
In most cases, the marriage must still legally exist when USCIS makes its decision. A divorce generally ends the qualifying relationship underlying a spousal petition.
However, immigration cases are highly fact-specific. Different considerations may apply to certain applicants, including some people who entered the United States with a K-1 fiancé visa or qualify for humanitarian relief.
You should speak with an immigration lawyer before withdrawing an application, missing an interview, or responding to a request from USCIS. Odunlami Law helps immigrants understand their options in family-based immigration cases.
Watch: How to Keep Your Green Card After Divorce
If You Have a Two-Year Conditional Green Card
Divorce can have a significant effect if you have a two-year conditional green card.
USCIS generally grants conditional permanent residence when a person receives marriage-based permanent residence before the second anniversary of the marriage. The conditional green card is valid for two years.
Ordinarily, the immigrant and sponsoring spouse file Form I-751, Petition to Remove Conditions on Residence, together during the 90-day period before the conditional green card expires.
If you are divorced, you may be able to request a waiver of the joint filing requirement and submit Form I-751 without your former spouse.
The Divorce Waiver
To qualify for a divorce waiver, you generally must show that:
- You entered the marriage in good faith
- You did not marry only to obtain an immigration benefit
- The marriage was legally terminated through divorce or annulment
- You have evidence supporting your relationship and the reason it ended
USCIS recognizes that a genuine marriage can end in divorce. The fact that a marriage did not last does not, by itself, prove that it was fraudulent.
USCIS provides more information about removing conditions on permanent residence based on marriage and the available waivers of the joint filing requirement.
How Do You Prove the Marriage Was Real?
When you file Form I-751 without your former spouse, USCIS may closely examine whether you entered the marriage in good faith.
Useful evidence may include:
- Joint leases or mortgage records
- Joint bank and credit card statements
- Joint tax returns
- Insurance policies listing each other as beneficiaries
- Birth certificates for children born during the marriage
- Photographs from different times and events
- Travel records
- Messages and other records showing an ongoing relationship
- Affidavits from relatives and friends
- Counseling or therapy records, when appropriate
- Evidence explaining why the marriage ended
USCIS considers the full history of the relationship. Evidence showing that you lived together, shared responsibilities, combined finances, and planned a life together may help demonstrate that the marriage was genuine.
Learn more about the documents that may help prove a bona fide marriage.
What If Your Divorce Is Not Final Yet?
A separation is not the same as a final divorce.
If you want to file Form I-751 using the divorce waiver, the timing of your divorce may affect how USCIS processes the petition. According to USCIS, divorce or annulment proceedings must generally be finalized before the agency can approve a waiver based on the termination of the marriage.
Do not allow your conditional green card to expire simply because the divorce is still pending. The timing of an I-751 petition, a divorce case, and any USCIS requests must be carefully coordinated.
If you live in New Jersey, Odunlami Law can help with both the immigration and family law issues involved in your case. Read our guide to divorce and immigration status in New Jersey.
If You Have a Ten-Year Green Card
If you already have a ten-year green card, divorce usually does not end your permanent resident status.
You remain a lawful permanent resident unless you abandon that status, become subject to removal under immigration law, or a government agency determines that the original green card was obtained through fraud or another legal violation.
A former spouse cannot simply call USCIS and cancel a ten-year green card. The spouse does not personally control the immigrant’s permanent resident status.
However, USCIS may review the history of the marriage during a future naturalization application. This can be especially important when the original green card was based on marriage. Applicants should answer all questions truthfully and keep records showing that the marriage was genuine when it began.
How Can Divorce Affect U.S. Citizenship?
Some permanent residents married to U.S. citizens may apply for naturalization after three years of permanent residence. To use this shorter period, the applicant must generally have been living in marital union with the same U.S. citizen spouse during the required period and remain married through naturalization.
A divorce may make the applicant ineligible for the three-year pathway. The person may instead need to apply under the standard five-year permanent-resident rule.
USCIS explains the marital requirements in its guidance on spouses of U.S. citizens applying for naturalization.
Divorce does not necessarily prevent you from ever becoming a citizen. It may change when you qualify and which naturalization rules apply.
What If Your Spouse Abused or Threatened You?
You do not have to remain in an abusive marriage solely to protect your immigration status.
Depending on your circumstances, you may qualify to file Form I-751 without your spouse based on battery or extreme cruelty. Other immigration protections may also be available under the Violence Against Women Act, commonly known as VAWA. These protections may be available to eligible survivors of any gender.
USCIS provides information for abused spouses, children, and parents.
If your safety is at risk, seek immediate help from law enforcement or a trusted domestic violence organization. You can also speak confidentially with an immigration attorney about protections that may apply to you.
Does Divorce End the Sponsor’s Financial Obligation?
Not necessarily.
A sponsor who signed Form I-864, Affidavit of Support, may continue to have financial obligations after the marriage ends. USCIS expressly states that divorce does not automatically terminate the sponsor’s obligations under Form I-864.
This is separate from issues such as alimony, child support, and property division decided in a divorce case.
Speak With a Lawyer Before You File
Divorce can affect your immigration case, but the outcome depends on your current status, the history of your marriage, your documents, and the timing of your filings.
At Odunlami Law, our attorneys understand how immigration and family law can intersect. We represent immigration clients throughout all 50 states and abroad. We also provide select divorce and family law services in New Jersey.
CALL US! (973) 993-1900
Contact Odunlami Law Firm to discuss your situation before an immigration deadline passes or a divorce decision creates an unexpected problem.
Frequently Asked Questions About Divorce and Green Cards
Will I be deported if I divorce my U.S. citizen spouse?
Divorce alone does not automatically cause deportation. Its effect depends on whether your green card application is pending, you have a conditional green card, or you already have a ten-year green card. Other immigration issues in your history may also affect your case.
Can I remove the conditions on my green card without my former spouse?
Possibly. A conditional resident may request a waiver of the joint filing requirement after a good-faith marriage ends in divorce or annulment. You will generally need a final divorce decree and evidence showing that the marriage was genuine.
Can my spouse cancel my green card?
A spouse cannot personally cancel an approved green card. However, a sponsoring spouse may withdraw a pending petition before it is approved. A spouse may also provide information to USCIS, but the government must follow the applicable legal process when deciding an immigration case.
Can I apply for citizenship after getting divorced?
Yes, you may still qualify for citizenship. However, you may no longer qualify under the three-year rule for certain spouses of U.S. citizens. You may need to wait until you qualify under the standard five-year rule.
Should I tell USCIS that I am divorced?
You must provide truthful, current information when USCIS asks about your marital status. Depending on the application or petition involved, you may also need to notify USCIS of the divorce and provide a copy of the final decree. An attorney can help you determine what is required in your case.
This article provides general information and is not legal advice. Immigration and divorce cases depend on individual facts, and immigration rules can change. Speak with a qualified attorney about your particular situation.
