Does Divorce Affect My Green Card or USCIS Application?
Updated on 10/27/2023
Divorce is painful. For immigrants, a divorce might bring significant challenge to their green card or green card applications. No matter you are planning to get divorced, or you already divorced, it is advisable to fully understand in advance how a divorce affects your green card or immigration applications. Depending on your current immigrant status, the influence of a divorce varies.
1. Divorce when your green card application is still pending
If your green card application is still pending, in other words, no green card is granted by the United States Citizenship and Immigration Services (USCIS), generally a divorce will stop your eligibility for green card if you apply for green card based on the marriage. No matter whether an immigrant petition gets approved by USCIS or not, you will not be granted a green card after you get divorced.
Example 1: You married to a U.S. citizen (or green card holder) and the spouse filed an I-130 immigrant petition to sponsor your green card through consular processing, the I-130 petition has been approved by USCIS, and you get divorced when you are waiting for an immigrant visa interview at the U.S. consulate, you will not get an immigrant visa (green card).
Example 2: You married to a U.S. citizen (or green card holder) and apply for green card through I-485 adjustment of status inside the United States, you get divorced when the I-485 is still pending with USCIS, you will not be granted green card.
Example 3: A Form I-130 petition filed by a sister of your spouse has been approved by USCIS, your spouse is the principal green card applicant while you are derivative green card applicant. If you divorce, you will lose your derivative status and will not obtain green card.
Example 4: You filed an I-485 application together with the I-485 application of your spouse based on an I-140 immigrant petition for your spouse. Your spouse is the principal green card applicant while you are derivative one. Your Form I-485 application is pending with USCIS and you get divorced, you will not be granted green card because you lose your derivative status upon divorce.
Example 5: You obtained derivative asylum status through your spouse who has been granted asylum. You filed an I-485 application based on derivative asylum status. If you get divorced when your I-485 application is pending with USCIS, you are not eligible for green card based on derivative asylum status. However, you could file a nunc pro tunc I-589 asylum application by yourself and obtain your own asylum status, then file an I-485 as an asylee.
There is an exception for aliens who married to a U.S. citizen or lawful permanent resident (LPR, or green card holder). If you have been subjected to battery or extreme cruelty by your U.S. citizen or LPR spouse in the United States, you can apply for green card by yourself. A divorce will not affect your green card application at all. In such situation, Form I-360 rather than Form I-130 should be filed to start your green card application.
2. Divorce after you obtain conditional green card through marriage
You will obtain a two-year conditional green card if you apply for green card based on a marriage to a U.S. Citizen or LPR and your marriage is less than two years when USCIS approves the green card. You must file I-751 petition to remove conditions on your green card. Because your green card is based on marriage, a divorce will affect your green card and I-751 petition significantly.
I-751 petition can be filed jointly by you and your spouse (“joint filing”), or filed by you individually (“waiver filing”). You can have waiver filing if you fall in one of the following circumstances:
- Your spouse deceased
- You were battered or subjected to extreme cruelty by your spouse
- Your removal from the United States will result extreme hardship
No matter joint filing for waiver filing, you must provide evidence to prove your marriage was entered in good-faith. However, USCIS will strictly screen I-751 petitions by waiver filing, especially waiver filing based on divorce. It is highly recommended to hire an immigration attorney to handle a waiver filing.
For joint filing, you can only file I-751 petition during the 90-day period immediately before your conditional residence expires. For wavier filing, you can file I-751 petition anytime before your conditional residence expires as long as one of the above circumstances happen.
What if you are divorcing but I-751 not filed yet?
If you are in divorce proceeding and no final divorce judgment yet, you can still file I-751 petition by yourself (waiver filing). However, USCIS will eventually issue a Request for Evidence (RFE) to ask for a copy of divorce judgment. Usually, you only have 87 days to respond such RFE. If you fail to provide a copy of divorce judgment within the timeline of RFE, USCIS will deny your I-751 petition and place you in removal proceeding (means terminate your green card and kick you out the United States). Divorce could takes a long time especially when you have a contested divorce. As a result, you should be careful if you plan to have a waiver filing when your divorce has not been finalized.
What if you filed I-751 petition jointly but later divorced before approval of I-751?
You can make a written request to USCIS to switch your I-751 petition to a wavier filing. You should attach a copy of your divorce judgment to such written request. If you fail to make such request and later your I-751 gets approved by USCIS based on a joint filing, USCIS will revoke your permanent green card if it finds the fact. You might wonder, how could USCIS find the fact that you divorced before approval of I-751? When you apply for citizenship, or file immigrant petition to sponsor green card for your new spouse, or other type of immigration applications which require screening your marital history, there is high probability that USCIS could find the fact.
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3. Divorce after you obtain conditional green card through EB-5
If you obtain a green card through EB-5 investment program, you will obtain a two-year conditional green card as well. You must file I-829 petition to remove conditions on your green card. Fortunately, a divorce will not affect your I-829 petition even if your spouse is the principal investor for the EB-5 program.
4. Divorce after 10-year permanent green card issued
Normally USCIS will not review your green card application again after you obtain permanent green card. Accordingly, a divorce after you obtain permanent green card has no effect on your green card. Nevertheless, keep in mind, USCIS has the right to revoke anyone’s permanent green card if it finds that he or she was not eligible for that green card at the time of its approval.
5. Divorce’s effect on citizenship application
Green card holders could apply for U.S. citizenship through N-400, Application for Naturalization based on a 3-year marriage to a U.S. citizen. Apparently, divorce prior to the approval of N-400 application will jeopardize such citizenship application.
Fortunately, you can always file Form N-400 based on five years as a green card holder. In this situation, your naturalization eligibility is not dependent on a current marriage. As a result, divorce does not affect your citizenship application.
Nevertheless, you should be alert that USCIS will review your entire immigration file when you apply for citizenship. Such review definitely includes your marital history. If you obtain green card through a marriage to a U.S. citizen or LPR and have been divorced, you must be prudent in preparing your N-400 application and its interview. USCIS will question you thoroughly at the N-400 interview for sure. USCIS may request additional evidence as necessary. If you can’t provide documents as requested, USCIS could deny your N-400 application. Even worse, USCIS could revoke your green card and place you in a removal proceeding.
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