Till death do us part. The harsh truth is that not all marriages last a lifetime. In good news, contrary to popular belief, the U.S. divorce rate has actually declined over the past few decades. Nonetheless, divorce is commonplace among American couples. Immigrants are no different. And for those who obtained a green card through marriage, divorce can have more life changing consequences than a broken heart.
This post addresses the effects a divorce (or annulment) can have on the immigration status of those who gained permanent residence through marriage.
As with many things, the most important factor is timing.
Divorce Before Approval of Your Green Card Application
If your marriage ends prior to the adjudication of your adjustment of status (AOS) application, many immigration forums indicate that your AOS application will be denied. However, the case is not as clear-cut as it may seem. If you came to the United States based on an approved I-129 petition (K-1 Fiance Visa), and you entered into a bona fide marriage within 90 days, you may nonetheless be eligible for AOS.
In the instances where your AOS application is denied, there may be other options available to you. If your nonimmigrant status has not terminated, you may remain in the U.S. in that status. If your non-immigrant status has ended, you will begin to accrue unlawful presence as of the date of its termination. In limited instances, those whose marriages ended because of domestic abuse should consider filing an I-360 petition for a battered spouse.
Divorce As A Conditional Permanent Resident
If you were married for less than two years when your AOS application was approved, you received a “conditional green card” valid for two years. Those whose marriages end while in conditional permanent resident status may nonetheless be eligible to remove the conditions on their status and receive a “permanent” green card. To do so, you will be required to obtain a waiver by showing that your marriage was legitimate.
Divorce As A Permanent Resident
If you obtained a green card based on marriage and your marriage ends while you are in “unconditional” permanent resident status, your status will generally not be affected. However, note that there are instances in which the USCIS may again question the bona fide nature of the marriage that led to your admission as a permanent resident. Such situation can occur when you submit your naturalization application. As such, it is always advisable to retain documents that evidence the bona fide nature of your marriage even after a divorce, including lease agreements, pictures, joint bank account statements, etc.
Note that exceptions may apply and no two cases are alike. Should you find yourself in any of the above-described situations, it is always best to consult an immigration attorney. If you are interested in having your case evaluated, contact us at 1-844-HOLBORN and one of our immigration attorneys will be happy to assist you.
Disclaimer: This post is meant for general informational purposes only, and it is not to be construed as legal advice. As with any laws, the information in this blog post may change at any time and may apply differently in different jurisdictions. The post may constitute Attorney Advertising as defined by the rules of professional responsibility of some jurisdictions. Holborn Law is based in Orange County and Riverside. The attorneys of Holborn Law APC are active members of the State Bar of California and licensed to practice law in California. All services relating to immigration and naturalization provided by Holborn Law APC are provided by active members of the State Bar of California or by a person under the supervision of an active member of the State Bar of California.