What You Need To Know About Divorce and Green Cards

By Richard T. Herman, Esq.

Divorce is tough and expensive. For immigrants it can get even more complicated, especially when it comes to your green card and immigration status. Depending on the type of green card you have and your situation, the impact of divorce can be huge. This guide will tell you how divorce affects your immigration status and what to do about it.

This will cover what happens to your green card after divorce, what you need to do and how to protect your immigration status.

Green Card Types

What is a Green Card?

A green card lets you live and work in the United States permanently. If your green card is marriage-based, your immigration status is tied to your relationship with your sponsoring spouse. Divorce can affect your ability to get or keep your lawful permanent resident status, depending on where you are in the green card process.

Citizenship and immigration services will scrutinize your application, especially if you have a conditional green card, and you will need to prove that your marriage was genuine when seeking waivers.

Types of Marriage Green Cards

U.S. immigration law has two types of marriage green cards:

Permanent Green Card (10-Year Green Card)
- Issued to noncitizens who have been married to a U.S. citizen for at least 2 years at the time of green card approval.
- Renewed every 10 years by filing Form I-90.
- Divorce does not affect renewal of a permanent green card as marital status is not considered during renewal.
Conditional Green Card (2-Year Green Card)
- Issued to immigrants who have been married less than 2 years at the time of green card approval.
- Valid for 2 years, then you need to file a joint petition (Form I-751) to remove conditions and get a permanent green card.
- To ensure the marriage is not just for immigration benefits.

What Happens to Your Immigration Status If You Divorce?

Moving to the U.S. for a marriage-based green card is a big deal, but what happens if the marriage ends in divorce before you get permanent residency? Your immigration status depends on where you are in the green card process. Here we will go over each scenario.

Scenarios Affected by Divorce in the Green Card Process

Your immigration status can be affected differently depending on your spouse’s status, the type of visa or green card you have, and how and when you got it. Here are the scenarios:

Divorcing before green card approval.
Divorcing before conditions on temporary green card removed.
Divorcing after getting a permanent green card.

Each has different implications so let’s break them down.

If a divorce occurs during the conditional green card period, USCIS may scrutinize the marriage for marriage fraud. It is crucial to prove that the marriage was entered into in good faith to avoid complications in the process of converting to permanent residency.

Additionally, if the divorce occures before naturalization, special attention should be made to document the bona fides of the prior marital relationship.

Divorcing Before Your Green Card Is Approved

Before Green Card Approval

If you divorce before your green card application is approved, your green card eligibility may end. For example:

If your green card application was based on your marriage to a U.S. citizen or permanent resident, divorce invalidates the basis for your application.
If you were a derivative applicant (e.g. included in your spouse’s employer-sponsored green card application), your eligibility ends with the divorce.

If the marriage ends before USCIS approves the petition, your green card eligibility ends too since it was based on the marriage.

If you’re in the process of applying for a marriage green card and get divorced, the application will be denied.

Key points to remember:

No Further Progress: Divorce ends marriage-based green card eligibility.
Fraud Vigilance: USCIS is very careful about fraud. Misrepresenting your marital status can have serious consequences.

Outcomes:

If the I-130 petition or the I-485 or DS-260 is still pending, your application is void, divorce will usually void the green card process.

What to Do Next: You may have to leave the U.S. unless you have another type of visa or immigration benefit.

Exceptions to the Rule

If you’re a victim of abuse or extreme cruelty by your spouse, you may be able to self-petition under the Violence Against Women Act (VAWA). Here are the key points:

Self-Petitioning: You can continue the green card process without your spouse’s consent or involvement.
Evidence Required: While police reports and medical records can help your case, they’re not required. Other forms of evidence, such as personal statements, may be enough.

Other Options: If your marriage-based green card is no longer available, consider:

Employment-based green cards
Sponsorship through another family member
Asylum or refugee status
Special immigrant categories
Registry for those who have been in the U.S. for a certain period

Note: Consult with an immigration attorney for possible waivers or other paths, such as self-petitions under special circumstances (e.g. abuse).

Divorcing with a Conditional Green Card

Conditional Resident (Conditional Green Card Holder)

Who You Are: You were granted conditional resident status based on a marriage less than 2 years at the time of application.
What Happens:
- Conditional resident status is only 2 years.
- To remove conditions, you and your spouse must jointly file Form I-751 within 90 days of your conditional green card expiration. Victims of battery or extreme cruelty by their U.S. citizen or lawful permanent resident spouse can continue the immigration process independently.

What If You Divorce?

You can still file Form I-751 but will need a waiver of the joint filing requirement.
USCIS will look into whether your marriage was real. Joint financial documents, shared property or testimonies can help.
Divorce makes it harder to remove conditions but not impossible.

Removing Conditions on a Green Card:

Before the 2-year conditional period ends, you and your spouse would normally file jointly Form I-751, Petition to Remove Conditions of Residence and provide evidence that your marriage was real. Examples:

Jointly held bank accounts, leases or property ownership
Photos of your life together (wedding, vacations, holidays)
Statements from family and friends that your marriage is real

A divorce during the 2-year conditional green card period can make things complicated but there are options: Seeking professional immigration services can help navigate these complexities and ensure you provide substantial evidence to USCIS.

What If You Divorce Before Removing Conditions?

Divorcing during the 2-year conditional green card period doesn’t automatically mean you’ll be deported or lose your status. But you’ll have to file Form I-751 on your own, requesting a waiver of the joint filing requirement.

Apply for a Divorce Waiver

If your divorce is final when it’s time to remove conditions, you’ll file Form I-751 with a divorce waiver. This waiver allows you to proceed without your spouse’s signature but you must prove your marriage was real.

Bona Fide Marriage:

Show that your marriage was real and not for immigration benefits. Provide:

Joint property ownership or lease agreements
Financial and insurance records showing shared accounts or expenses.
Annotated photos
Evidence of joint travel
Birth certificates of children born during the marriage.
Affidavits from friends or family who can attest to your marriage.
Marriage counseling records, if any
Reason for Divorce:
Write a detailed explanation of why you are divorcing.
If applicable, include court documents for abuse, adultery or irreconcilable differences.

Divorce Decree

If your divorce is final, include the decree with your petition. If not, provide proof that divorce proceedings have started and include the decree later if USCIS requests it.

File a Hardship Waiver

If returning to your home country would cause extreme hardship, you can file a hardship waiver with your I-751 petition.

What is Extreme Hardship:

Living in the U.S. for a long time and can’t adjust to life back home.
Not fluent in your native language.
U.S.-born children whose lives would be uprooted by relocation.
Medical conditions that can only be treated in the U.S.
Persecution or unsafe conditions in your home country.
Severe financial hardship.

A hardship waiver is tough to get but an immigration attorney can help you build a strong case with evidence.

Consider an Abuse Waiver

If you were abused or subjected to extreme cruelty during your marriage, you can file an abuse waiver instead of a divorce waiver. This applies whether you’re still married, separated or divorced.

Examples of Extreme Cruelty:

Physical abuse or threats of violence.
Emotional abuse, such as isolation, control over finances or manipulation.
Threats to report you to immigration authorities or interfere with your status.
Deprivation of basic needs like food, transportation or healthcare.

How to Prove Abuse:

Police reports, protective orders or court records.
Medical or therapy records documenting injuries or emotional trauma.
Affidavits from friends, family or counselors who witnessed the abuse.
Emails, text messages or other written evidence of abuse.

If Your Divorce Isn’t Final?

If your divorce isn’t final when your I-751 petition is due, include a copy of the divorce petition to show that the process has started. USCIS will usually issue a Request for Evidence (RFE) and give you 87 days to submit the final divorce decree.

Make sure to expedite your divorce during this period as not providing the decree on time can put your immigration status at risk. An experienced divorce attorney can help you get this done fast.

Tips to Win

Get Organized
- Gather all evidence to prove your marriage was real.
- Include supporting documents for any waivers you’re filing.
Work with an Immigration Attorney
- An attorney can help you with the waiver process, make sure all forms and evidence are submitted correctly.
- They can also represent you in USCIS interviews or appeals if issues arise.
Be Truthful
- Be honest about your marriage and divorce during your USCIS interview.
- Be specific and provide evidence to support your claims.

Divorce After Getting a 10-Year Green Card

Once you have a 10-year green card, divorce has little impact on your immigration status. As a lawful permanent resident (LPR), your status is separate from your marriage.

Important Points:

Divorce won’t revoke your green card or affect renewals.
You’re still eligible for U.S. citizenship through naturalization (usually 5 years after your green card approval, no longer 3-year rule)
During naturalization, USCIS reviews your entire immigration history.
You must prove your marriage was real and not fraudulent. Evidence includes joint bank accounts, shared leases and photos
If USCIS suspects fraud, they may deny your application or start removal proceedings
Legal permanent residency can only be revoked for specific reasons such as criminal activity or immigration violations—not for divorce

Renewing Green Card After Divorce

For most green card holders, divorce won’t affect their ability to renew their green card. If you have a 10-year green card, you can usually renew it without issues by filing Form I-90. Note:

No Marital Status Required: USCIS doesn’t ask for marriage status for 10-year green card renewal.
Name Change: If you want to change your name due to divorce, you can do so during the renewal process. Provide legal documentation, such as a divorce decree, as proof of name change and check the box on Form I-90.

Stay Compliant

Continue to meet the requirements for permanent residency, such as renewing your green card and not committing crimes.

Naturalization and Divorce

Many green card holders want to become a U.S. citizen. Divorce can change your timeline:

Naturalization Based on Marriage

If you plan to file for citizenship based on 3 years of marriage to a U.S. citizen, your divorce will make you ineligible for this shortcut. To qualify, you must:

Be married to the U.S. citizen spouse until the oath ceremony, maintaining your marital or relationship status.
Have lived with your spouse for 3 years before filing Form N-400, Application for Naturalization.

Naturalization Based on 5-Year Rule

Divorce won’t affect your ability to file for naturalization after 5 years as a permanent resident.For example, if you have a 5-year green card, you can file Form N-400 regardless of your marital status.

USCIS File Review

During naturalization, USCIS reviews your entire immigration history. If they suspect your original marriage was not real or fraud, they may:

Ask for more evidence.
Deny your naturalization application.
Start removal proceedings in extreme cases.

Divorce Before Citizenship Approval:

If you divorce after filing but before approval, you must withdraw your application and reapply after 5 years.
Divorce Impact: If you divorce before USCIS approves your naturalization petition, you lose the 3-year rule and must wait 5 years

Steps to Prepare for Naturalization After Divorce

Keep Records:

Keep documents that prove your marriage was real and you met residency and legal requirements.
Keep financial records for any divorce related obligations.

Be Truthful:

During your naturalization interview, answer questions about your marriage and divorce truthfully and directly.
Be prepared to explain any issues that might seem questionable, such as gaps in residence or financial disputes.

Show Positives:

Collect evidence of good moral character, such as:
Volunteer work or community service
Employer recommendations
Positive relationships with family, friends or religious groups.

Get Legal Advice:

An immigration attorney can help you navigate the naturalization process and address any issues from your divorce.

Divorce and Derivative Beneficiaries (Dependent Visa Holders)

If your green card is tied to a spouse’s employment-based petition (e.g. an H-1B visa holder’s I-140), your derivative status ends if you divorce before the green card is approved.

Who You Are: Your visa status is based on your spouse’s primary visa (e.g. H-4 visa for H-1B visa holders).
Divorce Impact:
- Divorce usually ends your dependent status.
- You may lose work authorization (EAD).
Before AOS Approval: The derivative beneficiary application process ends.
After AOS Approval: Divorce won’t affect the approved green card but may be scrutinized if conditional.

Options After Divorce:

Alternative Visa: Look into other visa categories, such as student or work visas, to stay in the U.S.
Abuse Exception: If you are in an abusive relationship, you may be eligible for independent work authorization under specific provisions like VAWA.
In most cases, if you can’t get a new visa, you must leave the U.S.

Protecting Yourself During the Process

What to Do If You’re Getting Divorced:

Get Legal Advice

An attorney can help you with waivers, evidence gathering and make sure you’re eligible for legal residency.

Document Your Marriage: Keep detailed records of your life together, including financial accounts, photos and communications. This can help your case for a good faith marriage if required.
File on Time: File Form I-751 within the 90-day window before your conditional green card expires, even if you have to file without your spouse. Late or incomplete filings can jeopardize your status.
Prepare for Interviews: If asked, provide detailed and credible testimony about your relationship during any USCIS interview.
Communicate with USCIS: Respond to RFEs or other notices promptly.
Be Honest: Don’t misrepresent your relationship status; fraud can lead to deportation.
Plan Ahead: Think about how divorce will impact your long-term goals, including naturalization.
Stay Informed: Immigration laws and procedures change. Check USCIS website or consult an attorney.
Know Filing Requirements: Make sure you meet all deadlines and requirements for Form I-751 or N-400.
Plan for Naturalization: Decide if you should apply for citizenship under the 3-year or 5-year rule based on your situation.

Quick Facts

Divorce does not affect green card renewals for 10-year green card holders.
Conditional green card holders have stricter requirements and must prove their marriage was good faith.
Divorce during the green card application process will stop your case unless the application is already approved.
Divorce can complicate naturalization especially if you’re using a shorter timeline through marriage.
Always consult an attorney to protect your status and know your options.

Divorce as a green card holder is tricky but with the right info and guidance you can navigate it and move forward.

Divorce FAQs for Green Card Holders and Applicants

Divorce FAQs for Green Card Holders and Applicants

Will my green card be taken away if I get divorced?

i. Conditional Green Card Holders: Divorce during the 2-year conditional period doesn’t automatically mean you’ll lose your green card. But you must file Form I-751 with a waiver to prove your marriage was good faith.
ii. Permanent Green Card Holders: Divorce doesn’t affect your permanent resident status. You can live and work in the US without additional requirements.
iii. Pending Applicants: If your green card application is pending and based on marriage, divorce will generally be denied unless you qualify for an exception such as VAWA.

Do I have to tell USCIS about my divorce?

You don’t have to notify USCIS right away after your divorce. But you must disclose it in future immigration applications such as naturalization or when removing conditions from your green card. It is also a new requirement to update USCIS on pending I-751.

Does divorce mean I’ll be deported?

No. Divorce alone doesn’t mean you’ll be deported. But if you fail to meet the requirements for your green card (e.g. don’t file Form I-751 on time) you could be placed in removal proceedings.

Can I stay in the US after divorce?

Yes. As long as you meet immigration requirements, divorce won’t force you to leave the US. You can file waivers or other legal petitions to maintain your status.

Divorce During the Conditional Green Card Period

What is a conditional green card?

A conditional green card is given to individuals who were married for less than 2 years when their green card was approved. It’s valid for 2 years and requires the couple to file Form I-751, Petition to Remove Conditions on Residence, jointly within 90 days before the card expires.

What if I get divorced before my conditional green card expires?

You must file Form I-751 on your own and request a waiver of the joint filing requirement. To succeed you must prove:

i. The marriage was good faith: Provide documents such as joint financial documents, leases, photos, affidavits from friends and family, and evidence of shared responsibilities.
ii. The reason for divorce: Include a divorce decree and explain why the marriage ended.

What if my divorce isn’t final before I file Form I-751?

i. File a copy of the divorce petition with USCIS and let them know the divorce is ongoing.
ii. USCIS may issue a Request for Evidence (RFE) and give you 87 days to provide the final divorce decree.

What documents should I include in my I-751 petition after divorce?

i. Joint financial documents (e.g. shared bank accounts, tax returns or utility bills).
ii. Photos of shared experiences (e.g. vacations, holidays and family events).
iii. Copies of children’s birth certificates if applicable.
iv. Statements or affidavits from friends, family or religious leaders attesting to your marriage was good faith.
v. Evidence of shared responsibilities (e.g. joint leases or insurance policies).

Can I still naturalize if I get divorced during the conditional period?

Yes, but you’ll have to wait 5 years as a permanent resident instead of 3 years if you’re no longer married to a US citizen.

Divorce With a Permanent Green Card

Does divorce affect my 10 year green card?

Divorce does not affect your permanent resident status if you have a 10 year green card. You can stay and work in the US without issue.

How does divorce affect green card renewal?

When you renew your green card, USCIS may review your marriage history. Be prepared to provide documents to prove your marriage was good faith if asked.

Can I remarry after divorce without affecting my green card?

Yes. If you have a 10 year green card, remarrying won’t affect your status. But if you’re still in the conditional period, you must prove your first marriage was good faith.

Can I naturalize after divorce?

Yes. If you’re applying for:

i. Married to a US Citizen: You can apply after 3 years of marriage if still married.
ii. Divorced: You must wait 5 years as a permanent resident before applying.

Divorce With a pending green card application

What if I get divorced before my green card is approved?

If you get divorced before USCIS approves your green card application, the process will be denied unless you qualify for exceptions such as:
• Filing under the Violence Against Women Act (VAWA).
• Filing a hardship waiver for extreme hardship if you go back to your home country.

What if my spouse withdraws the I-130?

If your spouse withdraws the I-130 before USCIS approves your green card, your application will be denied unless you can self petition (e.g. under VAWA or other waivers).

Can I continue my application after divorce if my spouse was abusive?

Yes. Under VAWA, you can self petition for a green card by providing evidence of abuse such as:
i. Police reports or protective orders.
ii. Statements from therapists or social workers.
iii. Affidavits from friends or family.

Special Waivers After Divorce

What is a divorce waiver?

A divorce waiver allows you to remove conditions on your green card without your spouse’s consent. File Form I-751 and provide evidence of good faith marriage.

What is an abuse waiver?

An abuse waiver is for conditional residents who were abused or subjected to extreme cruelty during their marriage. Evidence may include:
i. Medical records or police reports.
ii. Emails, texts or photos of abuse.
iii. Statements from counselors or social workers.

What is a hardship waiver?

A hardship waiver is if you can prove extreme hardship if you go back to your home country. Examples of hardship include:
i. Medical conditions that require US treatment.
ii. Language barriers.
iii. Financial hardship.
iv. Fear of persecution.

Legal Separation vs. Divorce

Does legal separation affect my green card?

Legal separation doesn’t end the marriage, so you can still file jointly to remove conditions. But if legal separation leads to divorce, you’ll need to file separately.

Derivative Beneficiaries and Divorce

What if I’m a derivative beneficiary and get divorced?

i. Before Adjustment of Status: Your eligibility ends if you get divorced before your green card is approved.
ii. After Adjustment of Status: If your green card is already approved, divorce won’t affect your status.

Can my spouse cancel my green card?

i. They can withdraw the I-130 before your green card is approved.
ii. Once you have your green card, they can’t cancel it, but USCIS will review your case if fraud is suspected.

What if I miss the Form I-751 filing deadline?

If you miss the deadline, USCIS will terminate your conditional status and start removal proceedings. You’ll need to provide a good reason for the delay to continue your application.

Will divorce affect my ability to travel internationally?

You can travel internationally with a green card. But if your divorce raises questions about your residency or intent, re-entry to the US may be more scrutinized.

Can I still apply for citizenship after divorce?

Yes, but the timeline changes. If you divorce, you’ll need to wait 5 years as a lawful permanent resident instead of 3.

What if my spouse won’t cooperate?

If your spouse won’t file jointly, you can still file on your own with a waiver.

What if I’m denied?

You may be able to appeal or reopen your case. Consult an immigration attorney now to see your options.

Will my divorce automatically disqualify me from US citizenship?

No. Divorce alone doesn’t disqualify you, but it can raise questions about your moral character and the legitimacy of your marriage.

Do I have to wait longer to apply for citizenship after divorce?

Yes. If you divorced your US citizen spouse, you’ll need to wait 5 years as a permanent resident instead of 3 years.

Can USCIS deny my naturalization application because of financial issues from my divorce?

Yes. If you didn’t meet your financial obligations, such as child support or alimony, USCIS may consider it a negative factor in your moral character evaluation.

Steps to Strengthen Your Case After Divorce

Keep Records: Keep evidence of your marriage’s legitimacy, financial records, photos and affidavits.
Consult an Attorney: File waivers or petitions with an experienced immigration attorney.
Be Transparent: Always disclose your divorce in immigration applications to avoid USCIS issues.

How an Attorney Can Help

Why Legal Matters

Divorce and immigration is complex. An experienced attorney can:

Help you collect and present evidence to USCIS
Guide you on other ways to stay in the US
Represent you if USCIS challenges you

When to Call an Attorney

If you’re getting divorced and have green card questions, contact an attorney now. Timing is everything.

You don’t have to lose your green card. Now you know your options and can act to protect your residency and plan for your US future. Contact Herman Legal Group now.