Understanding How Divorce Changes the Process
When an immigrant obtains lawful permanent residency through a newer marriage, they will only be granted a “conditional” green card. This more restrictive green card expires after 2 years instead of the typical 10 years. Unlike a nonconditional green card, the process to renew – or “remove conditions” – is an involved, time-consuming process that requires taking careful, time-sensitive steps.
United States Citizenship and Immigration Services (USCIS) remains eminently concerned about marriage fraud, in which immigrants enter into inauthentic marriages to procure green cards. Conditional green cards are used to discourage this practice, as it requires immigrants continue to prove the legitimacy of their marriage for several more years before they attain a traditional, nonconditional green card. To that end, you can apply to remove conditions within 90 days of the conditional green card’s expiration.
With this in mind, you might be wondering what happens if you and your spouse divorce before you can remove conditions. Is the conditional lawful permanent resident stuck? Will their green card expire, forcing them to either leave the country or live in fear of removal proceedings?
The good news is there are numerous scenarios where it is possible to remove conditions on a green card despite a divorce. Below, we cover these qualifying situations and what additional steps you will need to take to successfully petition USCIS.
Proving You Entered the Marriage in Good Faith
If you already have a conditional green card obtained through marriage, you have already convinced USCIS of the authenticity of your marriage once. No marriage entered faithfully anticipates a divorce, so in theory, you should not have trouble proving your relationship continued authentically until problematic factors necessitated a separation.
USCIS is looking to avoid situations where someone convinces them of the legitimacy of their marriage and then immediately seeks a divorce following the receipt of the conditional green card. As such, you will be expected to prove that your marriage continued until divorce became necessary. This can be done with supporting evidence that charts the time leading up to the divorce.
How Divorce Changes Filing Form I-751
Form I-751, the Petition to Remove Conditions on Residence, is typically a jointly filed form. This means both you and your spouse must sign and complete the form together. Lawful permanent residents looking to remove conditions on their green card must generally submit the petition in the 90-day window before their green card’s expiration.
These rules and timelines can change in the event of a divorce prior to a conditional green card’s expiration. If a divorce is finalized prior to the 90-day window in which you would traditionally submit Form I-751, you can instead submit the petition at any time. You do not have to wait for the window to take effect.
When submitting Form I-571 without the participation of your spouse, you will have to file a waiver requesting you proceed as a single petitioner. This waiver will automatically subject your petition to additional scrutiny. In addition to providing the rest of the information required by Form I-751, you will be expected to justify the divorce through additional evidence.
Providing Evidence Involving a Divorce
Even if you have gotten a divorce since receiving your conditional green card, you will be expected to submit additional evidence supporting the veracity of your marriage. This should include material that was not part of your initial green card application to prove your marriage continued after receiving lawful permanent residency.
Once a divorce enters the picture, you will have to also include explanations for why the divorce occurred. You will in most circumstances need to provide documentation and evidence that support your claim. The specifics of what should be included depends on the circumstances of the divorce.
A no-fault divorce occurs when a couple mutually agrees to separate as a result of irreconcilable differences. These typically revolve around major life decisions, including whether to have children, significant career changes, and where to live. As the name would imply, no party engaged in inappropriate conduct that directly led to the marriage’s termination.
Removing conditions after a no-fault divorce can be challenging. You are likely to have better odds if you can show proof that efforts were made to save a marriage, such as records demonstrating you sought marriage counseling or similar services.
A divorce by fault assigns blame to a participant in the marriage. This can include scenarios where your ex-spouse committed infidelities or physically or emotionally abused you. It can also include situations where a spouse is imprisoned as a result of a crime.
Generally, it is easier to successfully remove conditions when a divorce is the fault of your ex-spouse. You will be expected to submit proof of the behavior that contributed to the divorce. This can include photos of physical injuries stemming from physical abuse, copies of restraining orders, and affidavits from doctors or mental health professionals.
If you were found to be the reason for the divorce, removing conditions will become very difficult. It is unlikely USCIS will approve your request to remove conditions, as they will assume your behavior indicates you did not enter into your marriage in good faith.
What To Do If a Divorce Is Not Yet Final
Divorces can take a great deal of time to be finalized in court. Even if you initiated divorce proceedings months before your green card is set to expire, the matter may still be pending by the time you are expected to submit Form I-751.
In these situations, you will need to wait until the 90-day window before your green card expires before submitting Form I-751. Like with a finalized divorce, you will have to include the waiver requesting the ability to file as a single petitioner. You will need to indicate that a divorce is pending and explain why.
All of the evidence you would have otherwise included had the divorce been finalized should be sent to USCIS. You should also submit copies of court documents acknowledging the ongoing divorce process. It is likely that USCIS will at some point make a formal Request for Evidence to obtain the final divorce decree.
How To Proceed if Your Spouse Contests a Divorce and Will Not Sign Form I-751
If your spouse has become emotionally or physically abusive, they may refuse to jointly file Form I-751 when the time comes. Worse still, they may work to slow progress on a divorce by contesting it.
Fortunately, lawful permanent residents can remove conditions on their green cards when they are the victim of spousal abuse and in these situations file as single petitioners. Like in scenarios where a divorce has not yet been finalized, you will need to wait until your 90-day window before your green card expiration before submitting Form I-751. If you are attempting to pursue a divorce, you should indicate as such, but you should also emphasize and provide evidence of the spousal abuse.
Moving Forward with Form I-751 After a Divorce
The rest of the process of removing conditions proceeds as it would if you had filed with your spouse. USCIS will take time to process and review your application. If they are dissatisfied with the evidence provided, including the material explaining the divorce, they may make a Request for Evidence.
You will almost certainly be required to participate in an in-person interview with a USCIS officer. You will be able to attend this interview without your spouse. The agent will most likely ask multiple questions about the circumstances and causes of your divorce. Afterward, USCIS will make a decision on whether to approve your petition.
Should they grant your request, you will receive a new, nonconditional green card at your physical mailing address. Your previous marriage will now have no impact on your immigration status.
Our Team Can Help You Navigate Removal of Conditions After a Divorce
Divorce is never easy, especially where immigration is concerned. You will already be dealing with the exhausting matter of severing legal and emotional ties with your ex-spouse in addition to overcoming additional burdens of proof levied by USCIS. When divorce is unavoidable but you still wish to live and work in the United States, you will likely need the support of a qualified immigration attorney. Our team at Gambacorta Law has spent over a decade assisting our clients with a wide range of immigration issues. We are familiar with how to remove conditions from green cards in all sorts of scenarios, including those involving divorce.
If you have divorced your sponsoring spouse and need help removing conditions, schedule a consultation with our team by contacting us online or calling (847) 443-9303.
