What does divorce, separation, or death of a spouse mean for a marriage-based Green Card?

Conditional vs. Permanent Green Card

When applying for a marriage-based Green Card, the length of your marriage plays an important role. If you were married for at least 2 years before receiving permanent resident status, you will receive a permanent Green Card and do not need to take any additional steps. (Note: Permanent Green Cards expire and require renewal every 10 years. However, this process is simple and USCIS does not reevaluate your petition.)

However, if you were married for less than 2 years at the time you received permanent resident status, you’ll be granted a conditional Green Card. This type expires in 2 years, and you must apply to remove the conditions up to 90 days before expiration. To receive a permanent Green Card, you and your spouse must file an I-751 form jointly. Along with this form, you must attach supporting evidence showing that your marriage is legitimate. Once the I-751 is processed and approved, you will receive a permanent Green Card .

Divorce

Marriages do not always work out and fortunately, USCIS has policies in place for people who divorce before their conditional Green Card expires. Divorced conditional Green Card holders can apply for a waiver of the joint-filing requirement for the I-751. When filing alone, the burden of proof is on you to prove you and your ex-spouse entered into marriage legitimately. You need to submit convincing evidence that you did not solely marry for a Green Card. This evidence is similar to the documents you provided with your original marriage-based Green Card petition. Examples include birth certificates of children born during the marriage, joint leases/mortgages, and joint bank accounts and tax returns.

Separation/In the Process of Divorce or Annulment

Those who are separated or in the process of divorce/annulment are still considered married for legal purposes. Accordingly, if you submitted Form I-751 jointly or by yourself, USCIS will send you a Request for Evidence (RFE) asking for the final divorce decree or annulment. If you previously filed the I-751 together and have since separated or pursued divorce proceedings, you must also include a statement confirming that you want your joint filing treated as a single filing. Once USCIS receives the final divorce decree or annulment, they will waive the joint-filing requirement and process your I-751.

Death of the Petitioning Spouse

The passing of a spouse is one of the most painful and traumatic events that can happen in someone’s life. This can be especially stressful for an immigrant whose status is based on their marriage. Thankfully, you can file the I-751 on your own by requesting a waiver of the joint-filing requirement. You must include a copy of your spouse’s death certificate along with evidence that you both entered the marriage in good-faith.

Effect of Divorce or Death on the Citizenship Process

Immigrants who obtain a Green Card through marriage can usually apply for citizenship after holding their Green Card for 3 years. Unfortunately, in the event of divorce or death of the petitioning spouse, you do not get the same privilege. Like all other Green Card holders, you must maintain permanent resident status for at least 5 years before being eligible to apply for citizenship.

If you are experiencing any of the above situations and need help, reach out to mike@shermanimmigration.com or contact us here. At Sherman Immigration, we offer personalized assistance and support for every client’s needs.