Divorce is a difficult and emotional experience, but if you’re in the United States on a marriage-based green card, it can raise additional concerns. You may be wondering how your divorce will impact your ability to stay in the U.S. or affect your path to U.S. citizenship. The answer depends on the type of green card you hold. This guide will explain how divorce can affect your green card status and future immigration process.
Types of Green Cards
When you get a green card through marriage, it could either be a permanent renewable green card (valid for 10 years) or a conditional two-year green card. Conditional green cards are issued if the couple has been married for less than two years when the green card is approved. After two years, you must apply to have the conditions removed from your green card.
Divorce and a Permanent Green Card
If you have a permanent green card, getting a divorce typically does not affect your status. When it’s time to renew your green card, you can simply file Form I-90 (Application to Replace Permanent Resident Card). There will be no questions regarding your marital status during the renewal process.
If you legally changed your name during the divorce, you can also update your green card by submitting a legal name change record when renewing your card.
Divorce and a Conditional Green Card
If you hold a conditional green card, the situation is more complex. To remove the conditions after two years, you must prove that you and your spouse are still married. A divorce during this period will create challenges when applying to remove the conditions on your green card.
However, there is a waiver option when filing Form I-751 to remove conditions. You’ll need to prove that your marriage was genuine and not just for immigration purposes. U.S. Citizenship and Immigration Services (USCIS) closely examines waivers, so you may need to provide additional evidence.
Examples of evidence to prove the legitimacy of your marriage include:
- Joint financial documents
- Proof of living together
- Children born from the marriage
- Evidence of marriage counseling
In your application, you must also provide a written explanation for the divorce. For example, if you and your spouse had irreconcilable differences, explain what those were. If the divorce was due to domestic abuse or infidelity, you should provide your divorce papers and any supporting court records.
If the divorce was your fault, it’s advisable to consult with an experienced immigration attorney for guidance.
Divorce and Conditional Green Card When the Divorce Is Not Final
If you haven’t finalized your divorce when filing to remove the conditions on your green card, you must prove that divorce proceedings have started. USCIS typically issues a notice extending your conditional residency by one year. Later, they will send a Request For Evidence (RFE) asking for the final divorce decree once the divorce is finalized.
Divorce and Separation Without Divorce
In rare situations, even if you are separated or your spouse refuses to divorce, you can apply for a waiver to remove conditions by proving “extreme hardship.” USCIS provides examples of what qualifies as extreme hardship, and you would need to present strong evidence.
Divorce During the Green Card Application Process
Divorcing during the green card application process (whether as the applicant or the sponsor) halts the application. This is true whether you are applying for a marriage-based green card or sponsoring a spouse through an employer-sponsored green card process.
Additionally, USCIS is highly cautious about immigration fraud. Pretending to be married or failing to disclose a divorce during the application process constitutes fraud and can severely damage your case.
Divorce and U.S. Citizenship (Naturalization)
After receiving your green card, many people aim to become U.S. citizens. Generally, you can apply for naturalization after five years of holding a green card. However, if you’re married to a U.S. citizen, you can apply for naturalization after three years, as long as you’ve been living together and remain married throughout the process.
- If you divorce before applying for naturalization, you must wait the full five years, as a non-marriage green card holder would.
- To apply for naturalization after three years, you must prove that you have lived with your U.S. citizen spouse and submit this proof with Form N-400 (Application for Naturalization). You must also remain married until you receive U.S. citizenship, which may take several months or even years, depending on processing times.
- If you divorce before your naturalization application is approved, you can withdraw the application and reapply after five years.
Implications of Divorce Before Green Card Approval
- Application Denial: If your green card application is based on your marriage to a U.S. citizen or permanent resident, divorce invalidates the basis for your application. This means that if you were in the process of applying for a marriage-based green card and you get divorced, your application will be denied.
- Derivative Applicants: If you were a derivative applicant on your spouse’s green card application, your eligibility also ends with the divorce. This applies regardless of whether the I-130 petition has been filed or approved.
- Potential Exceptions: In certain circumstances, such as being a victim of abuse, you may qualify for self-petitioning under the Violence Against Women Act (VAWA), which allows you to continue the green card process without your spouse’s involvement.
- Next Steps: If your marriage-based green card is no longer an option, you may need to explore other immigration pathways, such as employment-based green cards or family sponsorship from another relative.
- Deportation Risk: While divorce complicates your immigration status, it does not automatically lead to deportation. You may still have options to remain in the U.S., particularly if you consult with an immigration attorney to explore alternative visa options.
What should I do if my spouse refuses to file jointly after a divorce
If your spouse refuses to file jointly after a divorce, you have several options to consider for filing your taxes. Here’s a breakdown of what you can do:
1. File Separately
- If your spouse is unwilling to sign a joint return, you will need to file as Married Filing Separately. This option is available until your divorce is finalized by the end of the tax year. However, this status often results in higher taxes and limits eligibility for certain credits and deductions.
2. File as Head of Household
- If you are divorced by the end of the tax year and meet specific criteria (such as having a dependent living with you for more than half the year), you may qualify to file as Head of Household. This filing status generally offers a higher standard deduction and more favorable tax rates compared to filing separately.
3. Seek Legal Advice
- Consult with a tax professional or attorney if your spouse’s refusal raises concerns about potential financial liabilities. They can help draft a tax indemnification agreement, which outlines responsibilities for any tax liabilities arising from a joint return, protecting you in case your spouse fails to pay their share.
4. Inquire About IRS Options
- If you believe that filing jointly is still beneficial, you can contact the IRS or consult a tax lawyer to see if there are any exceptions or alternative options available, although it is rare for the IRS to accept a joint return signed by only one spouse.
5. Document Everything
Keep detailed records of all communications regarding tax filings with your spouse. This documentation can be useful if disputes arise later regarding tax liabilities or responsibilities.
Divorce can impact your marriage-based green card and future U.S. citizenship in various ways. The effect depends on whether you have a permanent or conditional green card, as well as the timing of your divorce. It’s important to understand the requirements for both removing conditions from a green card and applying for naturalization. If you are facing a divorce and have concerns about your immigration status, it’s a good idea to consult with an experienced immigration attorney to guide you through the process.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel straightforward and successful. Whether you’re applying for a K-3 Visa or a K-1 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas have a strong record of helping clients secure the visas/permits they need for International travel. You can call us today at +234 812 5505 986 to learn how we can help you.
