Green Card After Divorce: Can You Still Get One?

Dear Sophie: Navigating Green Card Status After Divorce

This is another installment of “Dear Sophie,” an advice column dedicated to addressing immigration questions, particularly those related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of these inquiries. She states that these questions contribute significantly to the dissemination of knowledge, empowering individuals globally to overcome geographical limitations and achieve their aspirations.

Whether you are involved in people operations, are a company founder, or are actively seeking employment in Silicon Valley, Sophie welcomes your questions for consideration in her next column.

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Dear Sophie,

I obtained a conditional green card following my marriage in 2019. My wife and I have recently reached the challenging decision to divorce. My desire is to continue residing and working within the United States.

Is it still feasible to finalize my green card based on the original marriage through the I-751 process, or should I explore alternative options, such as seeking employer sponsorship for a work visa?

— Better to Have Loved and Lost

Dear Better,

I extend my sympathies regarding the dissolution of your marriage. Be assured that you can still pursue a permanent green card despite the divorce. I recommend listening to my recent podcast discussion with Anita Koumriqian, my law partner, where we delve into the process of removing conditions on permanent residency for individuals who initially received two-year green cards through marriage.

As you are aware, because your marriage was less than two years old at the time of your green card application, you were granted a conditional green card with a two-year validity, as opposed to the standard ten-year green card. The I-751 petition serves to demonstrate that the marriage was entered into genuinely and in good faith.

Typically, couples submit the I-751 petition jointly. However, an individual can file the petition independently under specific circumstances:

• If the marriage has been terminated through annulment or divorce.
• If the U.S. citizen spouse has passed away.
• If the conditional resident (and/or their children) has experienced battering or extreme cruelty.

If your divorce proceedings are ongoing and you haven’t yet secured legal representation, I strongly advise consulting with a family law attorney. Their expertise is crucial for streamlining the process.

Simultaneously, it’s advisable to consult with an immigration attorney as soon as possible to begin preparing the I-751 filing, as it can become complex during divorce proceedings. Effective coordination between both legal professionals is essential to ensure a smooth process with U.S. Citizenship and Immigration Services.

Timing for Petitioning to Remove Conditions on Permanent Residence

The Form I-751 petition should be submitted within the 90-day timeframe preceding the expiration date of your conditional green card. It is advisable to file as early as possible within this designated period.

Be aware that submitting your I-751 petition prematurely may result in its return. Conversely, filing after the conditional green card’s expiration can lead to potential departure from the U.S., and USCIS may deny the petition without a substantial justification.

Should you find yourself in this situation, consulting with your immigration lawyer is strongly recommended.

Importance of Timely Filing

Maintaining a current immigration status is crucial throughout the process. Filing the I-751 petition on time demonstrates respect for USCIS regulations and helps avoid potential complications.

A delay in filing, especially beyond the card's expiration, can create significant legal challenges. It's essential to proactively manage the timeline to ensure a smooth transition to permanent resident status.

Demonstrating a Bona Fide Marriage

Despite pursuing a divorce, it’s essential to provide documentation alongside your I-751 petition confirming that your marriage was genuine and based on affection, rather than solely for immigration purposes.

As Anita emphasizes, you need to demonstrate that your lives were “braided together.” This involves presenting evidence illustrating a shared life and mutual commitment.

Evidence of a Shared Life

Submitting a comprehensive collection of documents can effectively showcase the establishment of a life together. Consider including the following:

• Joint Housing Documentation: Lease agreements or mortgage documents verifying cohabitation.
• Combined Financial Records: Evidence of commingled finances, such as shared bank accounts with transaction history, and jointly filed federal and state tax returns.
• Insurance Policies: Documentation listing each other as beneficiaries.
• Counseling Records: Receipts from marriage counseling sessions.
• Shared Expenses: Joint utility bills demonstrating shared household responsibilities.
• Medical Records: Documentation related to shared medical experiences, such as in vitro fertilization treatments.
• Family Records: Birth certificates of any children born during the marriage.
• Travel Documentation: Receipts confirming joint travel experiences.
• Photographic Evidence: Photos with each other, alongside family and friends, illustrating a shared social life.

Providing a diverse range of evidence strengthens your case and reinforces the authenticity of your marital relationship.

Divorce Records in Green Card Applications

Individuals currently undergoing divorce proceedings may be required to provide documentation demonstrating the initiation of the divorce. Specifically, a copy of the filed divorce petition is typically requested.

Obtaining a 10-year green card necessitates a finalized divorce. Consequently, legal representation capable of accelerating the divorce process can be exceptionally beneficial.

Bifurcated Divorce Options

In states like California, Colorado, and Massachusetts, alongside over a dozen others, a bifurcated divorce is permissible.

This legal process allows for the finalization of the marriage dissolution prior to the complete resolution of all associated matters, such as asset division or child custody arrangements.

Cooperation with Former Spouse

A positive, amicable relationship with the future ex-spouse can prove advantageous in these situations.

One instance involved a client who, despite facing timing challenges with the divorce finalization, maintained a friendly rapport with her soon-to-be ex-husband.

He willingly signed the I-751 form and even attended the client’s green card interview.

During the interview, he affirmed to the USCIS officer that the marriage was initially founded on genuine affection, despite its eventual dissolution.

Following Up on Your I-751 Filing

Upon submission of the I-751 petition, the United States Citizenship and Immigration Services (USCIS) will issue a receipt notice confirming its acceptance and commencement of processing. Retain this notice carefully.

This receipt functions as an 18-month extension of your conditional permanent resident status, allowing continued employment, international travel, and potentially facilitating significant financial commitments like homeownership.

USCIS may schedule you for biometric data collection, specifically fingerprinting, and potentially an interview conducted in person. It’s important to note that a Request for Evidence (RFE) could be issued by USCIS either prior to or following the interview.

An experienced immigration attorney can assist in preparing responses to any RFEs and provide representation during the interview process.

Citizenship Eligibility After I-751

Even with a marriage-based green card, a five-year waiting period applies before you can apply for U.S. citizenship if the marriage to a U.S. citizen has ended.

Maintaining marital status until citizenship is granted is a requirement for the three-year citizenship pathway through marriage. However, the time spent as a conditional permanent resident—the initial two years—can be credited toward the five years of continuous residence needed for naturalization.

We wish you success as you complete the process toward obtaining your 10-year permanent resident card!

–Sophie

Do you have a question for Sophie? Submit it here. We maintain the right to edit submissions for clarity and length.

Please remember that the information presented in “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For details regarding the scope of “Dear Sophie,” please consult our complete disclaimer. Direct inquiries can be made to Sophie at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is accessible on all popular podcasting platforms. She is currently accepting applications from individuals interested in being featured as guests!