Divorce is often a stressful and emotional process, and when it involves immigration status, it can complicate matters even further. Many individuals who are married to U.S. citizens or lawful permanent residents (green card holders) worry about what happens to their green card application or status if they decide to divorce. If you find yourself in such a situation, it’s crucial to understand the legal implications of divorce on your immigration status and know that, in many cases, you can still maintain or obtain your green card with the right steps.
Understanding Green Card Status Before and After Divorce
Divorce affects foreign nationals differently depending on the stage of their green card application or status. Here’s a breakdown of the most common situations:
a) Divorce Before Receiving a Green Card
If you are in the process of applying for a green card but haven’t yet received it, divorce can significantly affect your application. Whether you’re applying through marriage to a U.S. citizen or a green card holder, the dissolution of your marriage could complicate things. In most cases, U.S. Citizenship and Immigration Services (USCIS) requires that the marriage be bona fide—meaning it wasn’t entered into solely for immigration purposes. If you haven’t yet received your green card and you’re considering divorce, your case will be scrutinized closely to ensure the legitimacy of your marital union.
Key Considerations:
- Bona Fide Marriage Requirement: The marriage must have been entered into in good faith, not as a means to obtain immigration benefits.
- Exceptions: In some instances, even if you haven’t received your green card yet, you may still be eligible for an exception. A consultation with an immigration attorney is highly recommended in these cases.
Divorce After Receiving a Conditional Green Card
A conditional green card is typically granted to individuals who have been married to a U.S. citizen or green card holder for less than two years. The condition attached to this green card is that it is only valid for two years, after which the foreign national must apply to have the conditions removed and obtain a permanent green card.
If your divorce occurs after you have already obtained a conditional green card but before you apply to remove the conditions, your case will be more complicated. USCIS will likely scrutinize your application more closely to ensure that your marriage was legitimate.
What You Need to Prove:
- Legitimacy of Marriage: You must prove that your marriage was genuine, even if it ended in divorce.
- Evidence: USCIS looks for various types of evidence to verify the legitimacy of the marriage. This can include shared bank accounts, joint leases or mortgages, photographs, and testimony from friends and family. Even if you don’t have children or property together, other forms of proof can be valuable, such as shared insurance policies or utility bills.
Important Advice:
- It’s crucial to work with an immigration attorney when filing your I-751 petition to remove conditions after divorce. A lawyer can help you gather evidence and structure your case in a way that presents your marriage as genuine, despite its dissolution.
c) Divorce After Receiving a Permanent Green Card
Once you’ve successfully transitioned from a conditional green card to a permanent green card (usually after two years), divorce generally has less impact on your immigration status. While the divorce itself does not affect your ability to stay in the U.S. as a lawful permanent resident, it could have consequences if you plan to apply for U.S. citizenship.
Steps to Take:
- Citizenship Application: Normally, an individual married to a U.S. citizen can apply for naturalization after three years of holding a green card. If the marriage ends in divorce, however, you will need to wait five years instead of three.
- Compliance with Formalities: Ensure that all documentation is up-to-date and accurate when applying for citizenship, as USCIS will still scrutinize your case to ensure there was no fraud involved in obtaining your green card through marriage.
Immigration Options for Victims of Domestic Violence
Divorce can be particularly complex when domestic violence is involved. The U.S. immigration system has special provisions to protect individuals who have suffered abuse at the hands of a U.S. citizen or green card-holding spouse. The Violence Against Women Act (VAWA) provides a pathway for victims of domestic abuse to obtain legal status, regardless of their gender.
a) VAWA: A Lifeline for Victims of Domestic Violence
Under the Violence Against Women Act, a victim of domestic violence can file for a green card without the help or consent of their abusive spouse. This is especially important in cases where the abuser threatens deportation or withholds immigration paperwork as a means of control.
Eligibility Requirements:
- Married to a U.S. Citizen or Green Card Holder: You must have been married to a U.S. citizen or lawful permanent resident who subjected you to abuse or extreme cruelty.
- Proof of Abuse: Evidence of abuse can include police reports, restraining orders, medical records, or even statements from a psychologist or therapist who has evaluated your situation.
- Self-Petitioning: You do not need your spouse’s assistance or approval to file for a green card under VAWA. The petition is filed as a “self-petition,” which allows you to bypass the need for spousal cooperation.
b) Evidence for a VAWA Petition
Providing evidence of abuse is a critical part of a VAWA self-petition. While police reports or medical records are the most straightforward forms of proof, not all victims have these documents. In such cases, USCIS may accept other types of evidence, such as:
- Testimony from a Therapist or Counselor: Victims who have sought help from mental health professionals can provide a statement from their therapist regarding the abuse they endured.
- Personal Statement: Victims may submit a detailed personal statement describing the abuse and its impact on their lives.
- Supporting Affidavits: Friends, family members, or neighbors who witnessed the abuse can provide sworn affidavits to support the petition.
c) U Visa for Victims of Crime
In addition to VAWA, victims of certain crimes may be eligible for a U visa, which also provides a pathway to legal status in the U.S. The U visa is designed for victims of serious crimes, including domestic violence, who have suffered significant mental or physical abuse and are willing to cooperate with law enforcement in the investigation or prosecution of the crime.
Eligibility for U Visa:
- Victim of a Qualifying Crime: Over 20 different crimes can qualify an individual for a U visa, including domestic violence, sexual assault, and kidnapping.
- Law Enforcement Cooperation: A key requirement for the U visa is that the victim must have cooperated with law enforcement in the investigation or prosecution of the crime.
- Long Wait Times: Due to the high demand for U visas, the wait time can be long—up to six to eight years or longer, as only 10,000 U visas are issued each year.
d) T Visa for Victims of Trafficking
A less-known option for immigrants is the T visa, which is available to victims of human trafficking. Trafficking can take the form of sexual exploitation, labor trafficking, or other forms of coercion. Like the U visa, the T visa provides a pathway to legal status for individuals who have suffered abuse and are cooperating with authorities.
Eligibility for T Visa:
- Victim of Trafficking: The applicant must have been subjected to trafficking, which can include forced labor, sex trafficking, or other forms of exploitation.
- Assistance to Law Enforcement: Cooperation with law enforcement agencies is generally required, though in some cases, victims of trafficking may be exempt from this requirement if they are unable to cooperate due to trauma.
Conclusion: Legal Help is Available
Divorce as a foreign national married to a U.S. citizen or green card holder can be a daunting prospect, especially if your green card application or status is in question. The good news is that, with the right legal guidance, many individuals can still maintain or obtain their green card after divorce. Whether you’re dealing with a conditional green card, applying for a permanent green card, or seeking protection under VAWA or other visa categories, the most important thing is to seek expert legal advice to navigate your situation.
Immigration attorneys who specialize in divorce-related cases can help you gather the necessary documentation, prepare your petition, and present your case to USCIS. Whether you need help proving the legitimacy of your marriage, applying for a green card under VAWA, or pursuing a U or T visa, a qualified lawyer can significantly improve your chances of success.
If you’re going through a divorce and have concerns about your green card status, don’t wait. Get legal advice today to protect your rights and secure your future in the United States.
Yes, if you’ve already obtained a permanent green card, divorce generally won’t affect your status. However, if you have a conditional green card, you may need to file a waiver and provide evidence that the marriage was bona fide.
If you’re in the process of applying for a green card, divorce can complicate your case. USCIS will review whether the marriage was genuine, and you may need to provide additional proof.
Yes, under the Violence Against Women Act (VAWA), victims of domestic abuse can self-petition for a green card without their spouse’s involvement, even after a divorce.
