Getting a divorce is not an easy process. In most cases, divorces are tiring and expensive. If you have immigrated to the United States, a divorce may affect your citizenship status.
Depending on where you are in the process of obtaining citizenship, you may not have an issue. It may seem overwhelming to have to consider your citizenship status while getting a divorce. However, you need to understand how a divorce can affect you before you file another citizenship application.
Divorce vs. Separation
If you determine that a divorce would affect your status, you may be able to separate from your spouse instead. In a divorce, the court legally ends your marriage. With a separation, you can stay legally married but live apart from your spouse.
The laws regarding divorce and separation vary by state. Some states have different options for changing your marriage, such as:
- Limited divorce
- Absolute divorce
- Informal separation
- Formal separation
The U.S. Citizenship and Immigration Service (USCIS) will interpret the laws in your state to decide whether your separation or divorce ended your marriage. It would be best if you consulted a lawyer who could help you weigh your options.
Where Are You In the Naturalization Process?
Divorce affects you differently depending on how far along you are in the citizenship process, your spouse’s status, and any immigration benefits you have. You may be affected if you are a conditional resident or if your situation depends on the status of your spouse.
Divorcing After Green Card Application
Marriage can make you eligible for a green card in various ways. The person who is a U.S. citizen or permanent resident can petition for permanent residence for their spouse. Additionally, you can be a derivative applicant if you are the spouse of someone who received a green card.
If the divorce happens before you’ve received a green card, the green card process will stop. You have to still be in the eligible relationship to continue with an application. The same result will happen even if the USCIS already approved your I-130 Visa Petition.
If you have a green card or permanent resident status, a divorce should not affect your situation. You can become a permanent resident if your marriage is two years old at the time of your green card application. However, the USCIS will re-open your case when you file for U.S. citizenship.
Divorcing After Conditional Green Card
If you have a two-year conditional green card, you may face some challenges moving forward if you get a divorce. During the conditional period, the USCIS evaluates the legitimacy of the marriage. After this period, the couple must:
- File a joint petition called Form I-751
- Provide evidence to prove the marriage is real
- Wait for the results of the request for permanent residence status
When you get a divorce during this period, the USCIS may doubt that your union was real. In this case, the conditional resident will need to prove the marriage’s legitimacy. This process can require a lot of extra work.
You can continue to file for permanent residency even after you have divorced. You’ll have to submit an I-751 petition, as well as a waiver to remove the joint filing requirement. However, it is a lot riskier to file this way. Make sure you get advice from a qualified attorney.
Renewing A Green Card After Divorce
Divorce does not affect most permanent green card holders. If you need to renew a 10-year green card, you can file Form I-90, which does not contain any marriage-related questions. When you submit paperwork to renew or replace your green card, you can also change your name, if needed.
Divorce Before Naturalization
Depending on your circumstance, a divorce may affect your eligibility to become a U.S. citizen even with a green card. When you file to become a citizen, the USCIS will review your immigration file in its entirety. They may find the timing of your divorce to be suspicious.
In general, the USCIS will ask questions about your marriage in your naturalization process. If they believe you obtained your green card fraudulently, they will ask you to provide convincing evidence that your marriage was genuine.
The USCIS may deny your application if you cannot produce sufficient evidence. This evidence may include:
- Documentation showing you lived with your spouse
- Proof of joint financial accounts
- Evidence of raising children
- Mortgage, loan, or lease documents
- Proof of joint ownership of property
- Photos of trips or attended events
- Affidavits from friends or family
No matter where you are in the citizenship process, you should consult an experienced lawyer before you finalize your divorce. While most green card holders are not affected, it is best to be sure to avoid devastating results.
Divorce May Extend the Timeline To Gain Citizenship
When you are the spouse of a U.S. citizen, you are eligible to file for naturalization after three years of having your green card. Most people have to wait for five years.
For the entire three-year period, you must:
- Live with your spouse the entire time
- Not have your spouse’s citizenship status change
- Remain married until you gain your citizenship
If you get a divorce during this time, you will have to wait five years instead of three to file for citizenship. After five years, divorce does not affect your eligibility because eligibility does not depend on marriage.
The USCIS will not automatically assume that divorce equals a false marriage. However, you may have to jump through extra hoops and wait longer to become a full citizen.
Ask an Attorney
While divorce can make it harder to become a permanent resident or citizen, it is still not impossible. Many marriages do not work out, regardless of your intentions. Before you file for divorce, you should understand whether or not it will affect your status.
To determine your options, get advice, or get help filing legal paperwork, contact an attorney who understands immigration and family law. They will be able to guide you through this challenging time and answer any questions.