Divorce and Your Conditional Residence Status
Did you know that it is possible to apply for your "Permanent Green Card" even after you divorce your US Citizen spouse? This process is very common and routinely approved, but each case is extremely fact specific so it's important to know how to proceed.
If you received your Lawful Permanent Residency through marriage to a U.S. citizen, you may end up receiving two separate Green Cards prior to being eligible to file for US Naturalization. The first card, also known as “Conditional Green Card", will be valid for two years and require a renewal be filed before the expiration date. To receive the second card, or "Permanent Green Card", you and your spouse are required to file Form I-751, Petition to Remove the Conditions of Residence within 90 days from the date the card expires.
In the case of divorce (or annulment) prior to the two year expiration date, filing a petition jointly may not be possible. In this case, you will still need to submit Form I-751 with USCIS but will also have to include a “waiver” of the joint filing requirement. Generally speaking, this "waiver" applies when a divorce occurs after a good-faith marriage, or if there was any kind of abuse or domestic violence at the hands of your U.S. spouse. Additionally, if the applicant would suffer extreme hardship if they were unable to remain in the US, they will need to mark the appropriate box. Along with these boxes, you are still required to submit joint marriage documentation, even if your spouse is no longer involved in your life.
Unlike the initial Green Card process, there is no requirement to have a financial sponsor for the I-751 application. For the Permanent Green Card, you are only filing a petition to remove the two-year restriction on your initial Green Card and not reapplying for your LPR status altogether. This is an important distinction given that conditional permanent residents have rights and privileges that allow them to continue living their lives even as the removal of the 2 year conditions application is processing with USCIS.
Divorce. It is important to remember the divorce process must be finalized before you can be approved for a waiver-based I-751 Application. Depending on where you live, the family law courts in your state could take several months to grant you a divorce, especially with the Covid-19 Pandemic, so plan accordingly.
Battery or extreme cruelty (Abuse). You may qualify for this waiver if you have been the victim of “any act or threatened act of violence [by your U.S. citizen spouse], including any forceful detention, which results in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.” (See 8 C.F.R. § 216.5(e)(3)(i).) You are not required to be divorced or even separated from your spouse to apply under this category. We recommend you gather documents such as police and medical reports, photos, psychological evaluations, witness statements, and/or prepare your own personal declaration.
Extreme hardship is the most general ground for a waiver. You must show that political or economic changes have arisen in your country since the time you became a conditional resident, causing you extreme hardship if you were to return.
No matter which category you fall under, you will need substantial documentation in order to be approved for your 10 year Green Card. This will include documents showing that your marriage was legitimate and genuine along with documents proving the divorce (a divorce decree), spouse’s death (a death decree), abuse, or hardship. Our office can provide you a list of the required documents and materials that are necessary for each possible I-751 scenario.
Telling your complete story is essential for USCIS to understand why your marriage did not work out. We recommend our clients always provide an honest explanation of what happened during the marriage, in both good and bad terms, when preparing their application. If you have any questions or would like to know more about this complicated process, please do not hesitate to reach out.
The Law Office of Nicholas J. Mireles is an experienced Los Angeles based U.S. Immigration law firm that has been practicing immigration law since 2013. Our background makes us uniquely well suited to help you with any issue relating to your immigration status.
Law Office of Nicholas J. Mireles, APC
411 West 7th St. Ste 310 - Los Angeles, CA 90014