When a foreign national marries a U.S. citizen or permanent resident, she or he can apply to become a permanent resident. A permanent resident is someone who may live and work in the United States. Permanent residents can eventually apply for U.S. citizenship through naturalization.
What Is a "Green Card?"
When an immigrant spouse is granted the status of permanent residence, she/he receives a "green card." Green cards are identification cards that prove an immigrant’s status as a lawful permanent resident. There are two types of green cards:
- Conditional green cards
- Unconditional green cards.
The immigrant spouse receives a conditional green card if the couple is married for less than two years. This conditional green card is valid for two years. After two years, the immigrant spouse can apply for an unconditional green card. The spouse must file a Form I-751 (Petition to Remove the Conditions of Residents) to get an unconditional green card. In most cases, both spouses must sign the form within 90 days of the two-year anniversary that the conditional green card was issued.
How Does Divorce Affect an Immigrant Spouse’s Permanent Residence Status?
Divorce or annulment may adversely affect an immigrant’s permanent resident status. The consequences of a divorce or annulment differ in three different scenarios:
- When the immigrant does not have a green card
- When the immigrant has a conditional green card
- When the immigrant has an unconditional green card
1. The Immigrant Does Not Have a Green Card
The immigrant spouse will not be eligible for permanent resident status through her former spouse if the marriage ends in divorce or annulment.
2. The Immigrant Has a Conditional Green Card
If the immigrant has a conditional green card, divorce or annulment will complicate her ability to convert her green card to an unconditional green card. The immigrant will still need to file a Form I-751 (Petition to Remove the Conditions of Residents). She will also need to include a request for a "waiver" of the joint filing requirement. Waivers can be based on the following criteria:
- Divorce after a good-faith marriage
- Abuse or battery in a good-faith marriage
- Extreme hardship to the immigrant if she returned to her country of origin
3. The Immigrant Has an Unconditional Green Card
Divorce or annulment does not negatively affect an immigrant’s permanent residence status if she has an unconditional green card. But, divorce may extend the time it takes for her to become a U.S. citizen. If a permanent resident continues her marriage, she can usually apply for citizenship after three years. If the permanent resident gets a divorce before becoming a U.S. citizen, she generally can apply for citizenship after five years of residency.
Should I Consult a Lawyer?
Yes. You should consult an experienced immigration attorney or family law attorney if your divorce may affect your immigration status. Divorce can be a difficult time, and not knowing how it affects your permanent resident or citizenship status can make it even more difficult. Your attorney can help you fill out the necessary paperwork and help you understand complicated immigration laws.