Going through a divorce could be an emotionally taxing process. After all, you're ending your relationship with someone you chose to live the rest of your days with. However, there's one thing that could make this already difficult circumstance even more challenging; getting a divorce before you have even attended the interview for your green card. For some couples, this could get more complicated if the divorce happens after the interview.
Anyone in this predicament could be wondering what happens when you get divorced either before or after their green card interview. Are you going to be forced to go back to your country? Is there something you could do to stay in the US even if you're not married to the person who was intended to be your visa sponsor? Read on to learn more.
The Marriage-Based Green Card Interview
Couples seeking marriage green cards are required to go through a process known as a "marriage interview."
If their marriage has lasted for less than 2 years, the visa is considered a "conditional" green card, valid for two years. The married couple must submit the necessary paperwork after the 2-year term to have the conditions lifted. This process also includes you and your spouse going through a second green card marriage interview.
Unfortunately, obtaining a green card could be more difficult if the couple gets divorced before either interview. However, getting divorced is not enough to disqualify someone from being granted permanent residency.
In general, a candidate is still qualified to proceed with the green card application if they have an additional reason for applying, such as for work, provided they can convince the immigration authorities that their marriage was legitimate and that there were valid reasons to get the divorce.
There is a huge risk of getting declined if you obtained your green card through your partner's residency status. The whole point of the green card was to keep yourself and your partner close rather than having you live apart in different countries. Therefore, your prospects of obtaining a green card decrease when the marriage fails and, more so, before the green card interview. This is also subject to your spouse's legal status.
Divorce During the Immigration Process
If you get a divorce during the immigration procedure, you should present proof that you got married legitimately and in good faith
What If the Couple Is Just Separated and the Divorce Has Not Been Finalized?
Even though separation and divorce before your green card interview draw more scrutiny, there are particular distinctions in how to handle these closely tied scenarios. You'll be better able to decide how to proceed with the green card petition if you are aware of the intricacies associated with each scenario.
Divorce and Separation in the Eyes of the Law
Both separation and divorce are subject to rigorous scrutiny. However, several aspects distinguish them from one another under the law. Knowing these distinctions will enable you to decide exactly what action to take next when moving on with the application for your green card
For starters, separation simply denotes that both parties are now residing in separate homes, whereas divorce signifies that the family has been formally dissolved in court. When a couple divorces, it's evident that their marriage is over, but when they separate, they are still considered to be legally married and have the option of reconciling.
In separation, the pair has not finalized their split through the process of getting a divorce, so they are considered married even though they are no longer living together. This indicates that the petition for the green card can still be processed. This enables you to apply for I-751 jointly even though you are no longer together. You must take this action no later than ninety days before your conditional residency status expires. Do not forget to bring the paperwork demonstrating that your marriage is still valid as well.
Divorce Before the Green Card Interview
The immigration authorities will set up an interview with both parties before their first marriage green card is approved. Both partners are expected to show up, and their interview is generally held jointly. The marriage interviews are conducted to avoid immigration fraud. In most cases, immigration authorities are going to question the couple to verify the legitimacy of their marriage.
When the couple gets a divorce before their marriage interviews, the non-U.S. party can't use the marriage as a reason to get a permanent resident visa. This means that the application for a green card will be rejected.
On the other hand, the green card application procedure can go forward provided that there is a different and independent reason for doing so (for example, for employment). If the petitioner is eligible under another provision, such as the Violence Against Women Act, they ought to discuss this option with their immigration lawyer.
You begin the application procedure for permanent residency when you apply for your green card. Your admission status into the United States will determine the outcome when you are divorced before the interview. Your eligibility will rely on if your status indicates that you're a "derivative beneficiary" or a "primary beneficiary."
If you are the "primary beneficiary" of an employment-based visa, you can continue with the green card application process. As a result, if you're a "derivative," the application won't be able to support your claims. The length of your marriage will also affect this. Being married to a citizen of the United States does not necessarily make you an American citizen, but it can help in several ways.
There are some actions you can take afterward to safeguard yourself from losing your eligibility. However, this depends primarily on the circumstances of the marriage.
You can apply for an exemption after filing for divorce if you were married for no less than two years. If you did, you could then seek to obtain a status adjustment (that is, a work visa). Divorce after a conditional visa can be difficult to manage and should be handled with the help of an experienced immigration attorney.
Divorce Before Your Second Marriage Interview
As previously mentioned, marriage-based immigration visas are usually granted conditionally for two years for marriages that are under two years. The couple is required to submit jointly completed Form I-751 (Petitions to Remove the Conditions of Residence) before the completion of the two years. The procedure occasionally includes a follow-up marriage interview.
The situation will be complex when the couple gets divorced before their second marriage interview, although the foreign national candidate can go forward with getting the conditions lifted. This is because the legitimacy and authenticity of the couple's marriage at the time it was signed into is the basis for the ability to lift the conditions. The breakdown of the marriage is not proof that it was fraudulent from the beginning.
There is no doubt that the divorce raises a "red flag" with immigration authorities. The request to lift the conditions will therefore be given further thought. It is necessary to keep this in mind when preparing Form I-751. It will be crucial to discuss the validity of the marriage at the time it was conceived and the reasons behind the divorce.
The necessity of jointly filing Form I-751 presents one practical issue. Sometimes, the ex-spouse declines to help with Form I-751 filing. There are ways to get past this particular issue with the assistance of knowledgeable immigration lawyers. The applicant is essentially asking for permission to avoid the joint filing rule by submitting a waiver.
Separation Before the Green Card Interview
While separated couples can still be married under the law, it is more difficult than you might expect to keep a green card. For instance, some states treat an official separation exactly like a divorce simply because they think that's how the union will end.
However, some states won't consider your separation as the beginning of your divorce. In these cases, you could still receive your green card even though you've separated.
But you'll have to demonstrate that you didn't just enter the marriage contract to get a green card along with proving you did so in good faith. Additionally, you are going to have to provide evidence (such as notes from your marriage counselor) demonstrating you made genuine efforts to mend relations with each other before your separation.
There are some options available for staying in the United States, but cooperation with your partner is likely to be the most successful. You can sign the I-751 waiver together after you've already decided to go your separate ways.
If you and your spouse are still amicable and your marriage is still legally recognized, you may be eligible for a green card provided you can demonstrate at your interview you did so in honesty.
How Separation Affects the Green Card Application Process
Although many separated individuals wish it were easier to obtain a green card based on their marriage, it is not. The following are some repercussions for separation from a partner who is a citizen or permanent resident of the United States:
Certain State Laws Could Regard You as Separated
When you are separated during the green card marriage interview, state laws will play a part in determining whether your application will be approved. When determining eligibility for a green card, immigration authorities would typically see a separation from marriage as a divorce when you live in a jurisdiction where it is regarded as one of the phases of a divorce proceeding or when the separation is considered a divorce within the scope of the state laws.
However, you can still be granted the green card despite your separation in jurisdictions where separation isn't considered an official forerunner to divorce. In this case, you must show that your marriage began in good faith rather than to get a green card if you want to be successful. Additionally, you have to provide proof of what you've done to reconcile.
Your Spouse Could Be Uncooperative
After the divorce, the spouse who is a citizen of the United States or a permanent resident could choose not to complete the form I-751. In this case, you can apply for permanent residency alone and forego the necessity for filing jointly. You could opt to wait until the divorce is final before seeking the waiver if your spouse is uncooperative.
But you can still proceed with getting your marriage green card application provided you're both still amicable while being apart and the union is still recognized by state law. To demonstrate that you went to the union of marriage sincerely, you need to be ready to respond to inquiries and provide supporting documentation.
Divorce After Your Conditional Green Card Interview
Being married to a permanent resident or citizen of the United States does not automatically provide you with your green card, but it helps pave the way for one. Particularly if the marriage is under two years, the United States Citizenship and Immigration Services (USCIS) is going to want to confirm that it is authentic. So, if you want to get a green card through marriage, you'll have to settle for a conditional permanent residence visa that you can renew every two years.
Having a conditional visa merely implies that your permanent residency status is granted temporarily and subject to revocation should you fail to comply with immigration regulations. Among the requirements for obtaining your green card as an immigrant by marriage, would be to demonstrate that the marriage is genuine and wasn't established solely to obtain the visa.
Because of this, if the marriage is under two years, you will receive a conditional visa that is only usable for that duration. Couples must submit jointly filed I-751. Both parties must be there to sign this document.
The USCIS could raise an eyebrow if you dissolve your marriage in the first two years after you become a permanent resident. Your assertion that the marriage was made in sincerity is called into question by this. Therefore, in this circumstance, additional effort will be needed to demonstrate that your marriage was genuine from the beginning.
This can be done by submitting an I-751 jointly signed petition waiver. In other words, you would like to remove the requirements for obtaining a visa without involving your former spouse. The waiver application is meant to show the US Citizenship and Immigration Services that you had good faith while entering the marriage.
For anyone going through the procedure for the first time, the immigration process could seem overwhelming. There are a lot of forms and paperwork to submit, and making an error could be quite costly.
When submitting your waiver, you can provide certain evidence, including:
- Demonstrating the existence of irreconcilable disputes between you two.
- You could provide evidence of your spouse's domestic violence, criminal activity, or adultery.
- You can also provide proof of your efforts at reconciliation. For instance, the notes from your counseling sessions with your marriage counselor.
But remember that the immigration authorities will still closely examine your allegations, no matter how credible they may be. It is recommended that you speak with an immigration attorney before submitting the petition.
What Happens If You Get Divorced After Obtaining a Green Card?
After finalizing your divorce, your first step should be to get in touch with an attorney who has a complete picture of your situation.
Divorces can have a detrimental impact on individuals since they add extra burdens to conditional residents who receive a 2-year residency permit. That's why you and your ex-spouse must submit the I-751 application together, demonstrating that you got married authentically and honestly.
Will Your Residency Be Affected When You Divorce Before the Unconditional Green Card Renewal Interview?
Your United States residency is unlikely to be impacted by the divorce if you were granted unconditional residency before getting married. The only situation that could change this is if you intended to apply for U.S. citizenship. The typical waiting period for citizenship is three years, during which time you must be married to your partner. If you've divorced, you'll be required to wait for 5 years to become a citizen, during which time USCIS authorities will determine if the marriage was legitimate or not.
What Happens When the Divorce Happens After Getting the Permanent Residency?
In most situations, once an alien has been granted permanent residence, they shouldn't have any concerns about facing deportation when they are divorced. As a result, it is possible to get divorced after submitting the joint I-751, but only if your Green Card has been secured.
Find an Los Angeles Immigration Attorney Near Me
Getting divorced before or after your green card interview could be a complex process for many couples depending on the situation at hand. You still have the potential to receive your green card provided your ex-spouse cooperates, but only if you can show the marriage was legitimate. If you would like to learn more about how divorce can affect your permanent residency status, you can contact the California Immigration Attorney. Call us today at 424-789-8809.