Could Divorce Affect Your U.S. Immigration Status?

Published On: October 10, 2022Views: 939

Spanish Video Above Translated In English Below

Divorces In The U.S. For Mixed Families

It is estimated that in the United States there are more than 2.2 million marriages per year, and in turn there are almost 1 million divorces.

In 2019, the United States topped the ranking of countries with the highest number of divorces, with more than 800,000 cases in one year.

With these statistics and knowing that there are more than 14.4 million people living in mixed-status families, it is hard to believe that immigrants are not affected by these numbers.

Going through a divorce is a complicated process and can be emotionally and financially frustrating.

In addition, if we initiate our immigration proceedings through marriage, it may affect our case.

Those with conditional permanent residency should consult with an immigration attorney if they are contemplating divorce in the near future.

Divorce In The United States With A Citizen Partner May Affect Immigration Status

If I Have My Conditional Green Card And I Get Divorced, Can I Become A Permanent Resident?

There are many ways to fix this type of situation even if you separate or divorce, since it doesn’t really matter.

The Conditional Green Card applies when someone is approved for a Green Card when they have been married to a citizen for less than 2 years from the date of the Green Card approval.

This date may be modified depending on the case process.

One person who has been married for 2 years and 2 days will receive a Green Card for ten years, and the other who has been married for 1 year, 11 months and 15 days will receive a Conditional Green Card.

These 2 years are what is taken into account at the time of approval of the Green Card, but it is really not very difficult to remove the conditions of the same.

This is another step that the immigrant has to go through, and for this, we use the form I-751 to remove these conditions.

Normally, these couples continue to live together, we have to submit the form with their two signatures and evidence that these people are still married.

In the case of immigrants who are in the process of separation or divorce with the U.S. citizen, it is possible to carry out this procedure if they have the possibility of continuing to live with their U.S. citizen spouse, in order to send the I-751 with the two signatures with the same address.

Usually, this type of process is approved within 1 year, but if the couple is already separated, they have to tell the immigration agency the truth.

The options in this type of case would be to turn in the form together, put your two signatures and put in addresses that would already be different, and therefore, it would be a little more complicated, because it is probably going to result in an interview for both of you.

The separated couple can go to the interview and explain the situation of why they are separated and also explain if they are working on the marriage if they have not yet decided to divorce.

If the couple is already sure that they are going to separate, that they are not going to live together, the best thing to do is to start the divorce process, it would be best to start the divorce process.

There are ways to remove these conditions from the Green Card after a divorce or separation.

Could Divorce Timing Affect Your Green Card?

Yes, because a permanent resident qualifies to apply for citizenship under the naturalization process if he has had his residency for at least 5 years.

The exception is for spouses of citizens who have been living together for 3 years.

After a divorce, the person cannot qualify under these 3 years, they have to wait 5 years.

Free Consultation On The Benefits And Immigration Risks Of Ending Your Relationship With A U.S. Citizen In The U.S.

If I’m Divorced Can I Get Permanent Residency?

Let’s take the example that a person who got a conditional Green Card is already divorced or separated, that person is going to have to remove the conditions on their Green Card, but there are four ways to do this without the help of their ex.

First, it must be proven that it was a bona fide marriage but resulted in a legal divorce. That type of exception or pardon requires a divorce decree or a final document signed by the judge, and that is an important point because the person must have been divorced.

Second, (here it doesn’t matter if you are divorced or not) is whether the applicant or beneficiary suffered cruelty or abuse in the relationship. This could be battering, physical abuse, but it could also be mental, verbal, sexual, or economic abuse.

These are types of abuse that show how the victim is affected, so this type of waiver does not require a divorce, but you can also apply for this waiver at any time, even before you have completed 2 years of residency, or after your conditional Green Card has expired.

The third way is if the applicant or immigrant will suffer harm if returned to his or her home country, this option is like an asylum case.

We have to prove that the person will lose a lot or be at great risk if they lose their immigration status.

We often use this type of waiver if there is a risk in your home country.

The fourth option is if the citizen petitioner is deceased, and obviously we only go to this option when we have a death certificate.

The most common form is a waiver after a divorce, and the second most common form is a waiver based on abuse and cruelty in that relationship.

Why Is It Important To Remove My Green Card Conditions?

It is essential that the immigrant remove the conditions of their conditional Green Card, because they may lose that residency if they don’t apply to remove those conditions before their deadline.

The applicant could lose their immigration status in the United States. That is why it is so important to have a lawyer specialized in these immigration issues and to plan everything at the right time.

At Lincoln-Goldfinch Law, for example, we have had many consultations with conditional residents who are still living with their spouse, things are not going well between them and they are afraid about their future.

In that consultation we can discuss their individual situation, the documentation or evidence that person will need to remove their conditions, without the help of their spouse, then before they leave this shared home, they can gather the evidence necessary to build a strong case.

When Do I Receive A Conditional Green Card In The U.S.?

When an immigrant is at the time of Green Card approval, which may be the day of the interview (for those adjusting status in the U.S.) with immigration, this is normally when the officer will put the approval notice in the system for the next day.

In the case of the Consular Process the day of approval of residency is the same day, in fact, when you are already allowed legal entry into the United States.

If the couple has been married for more than two years, the immigrant will receive their normal residency and a Green Card for ten years of validity, but if they have been married for less than 2 years, the immigrant will receive a conditional Green Card.

Once you receive this type of Green Card, you will have to remove the condition from your Green Card.

Sometimes it is worth waiting until the couple is married for at least 1 year, because the adjustment of status process can take about 1 year, if they do not want to take this second step.

We can also be creative with couples who have not yet been legally married, and one thing we can do is to register an informal marriage or a Common-Law Marriage in the State of Texas and choose the day of the beginning of the marriage.

Can Having Children Affect Whether Your Green Card Is Conditional?

No, they are only affected by the decision about the 2 years of marriage or not, that is the only thing that will be affected in whether you will receive a conditional Green Card or not.

If You And Your Partner Are Going Through A Difficult Process, Consult With Lincoln-Goldfinch Law How This Could Affect Your Immigration Status

Having Multiple Entries To The U.S. & Getting Caught By ICE What Penalties Do You Face?

Unfortunately, there are serious consequences for a person who received at least a voluntary departure by an immigration judge and did not get out, that person is probably going to have a punishment probably for life.

This is something that should not be done, and we don’t like to give any kind of advance legal advice in such a complicated situation, because here what is worthwhile is to get the court file out and find out what the judge’s order was, because it may be something a little different.

That is why it is worth investigating the situation, but in general, when a person remained in the United States after a voluntary departure with a court-issued deportation order, and who now has a citizen son over 21 years old, he will not be able to settle for that relationship.

If, for example, we are talking about a VAWA case, let’s remember that this type of humanitarian case is for family members of citizens who have suffered violence or abuse in the relationship.

In the case of parents of U.S. citizens, when the citizen is over 21 years of age, they may qualify and apply for VAWA, as that is a humanitarian case that comes with more flexibility and more waivers.

Are Children’s Status Affected By Divorce & Conditional Green Card?

The immigration status of children with a conditional green card or residency will continue to follow the same status as the mother’s or father’s status.

Before making any kind of decision in your relationship, it is worthwhile to adjust everyone’s legal and immigration status and make sure that everyone is on a good immigration path.

It is important to mention this, since if, for example, the mother loses her immigration status in the U.S., that will also happen to the mother’s children.

If you have additional questions about your divorce, separation, or your specific case, you may contact us at (855) 502-0555. After a brief 10-minute evaluation of your case over the phone, we will let you know what options you have. You can also follow us on our social networks so you don’t miss our weekly broadcasts on Facebook, YouTube and Twitch.

Frequently Asked Questions About Immigration Status & Divorce

No, they are only affected by the decision about the 2 years of marriage or not, that is the only thing that will be affected in whether you will receive a conditional Green Card or not.

Unfortunately, there are serious consequences for a person who received at least a voluntary departure by an immigration judge and did not get out, that person is probably going to have a punishment probably for life.

Yes, because a permanent resident qualifies to apply for citizenship under the naturalization process if he has had his residency for at least 5 years. The exception is for spouses of citizens who have been living together for 3 years.

About the Author: Kate Lincoln-Goldfinch

I am the managing partner of Lincoln-Goldfinch Law. Upon graduating from the University of Texas for college and law school, I received an Equal Justice Works Fellowship in 2008, completed at American Gateways. My project served the detained families seeking asylum. After my fellowship, I entered private immigration practice. My firm offers family-based immigration, such as greencards and naturalization, deportation defense, and humanitarian cases such as asylum, U Visa, and VAWA. Everyone at Lincoln-Goldfinch Law is bilingual, has a connection to our cause, and has demonstrated a history of activism for immigrants. To us, our work is not just a job. After the pandemic we began offering bankruptcy services in addition to immigration I realized how much lack of information there is in financial literacy resources in Spanish.

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