A Miami Family Lawyer’s Guide to Getting Green Card After Divorce

Love (and separation) from afar; divorce and deportation.

The world is shrinking. No, not in physical size; but with ever growing technological advances two people, even continents apart, are within seconds of “live” communication. With the rising popularity of shows like TLC’s 90 Day Fiancé, questions abound. Family members cannot help but ask the cliché question of the alien (“An individual who is not a U.S. citizen or U.S. national”) “are you marrying my [daughter/son/sister/brother] for a green card?” But what about the flipside: what does divorce mean in terms of deportation? What potential effects does a divorce have on the immigration status of an alien?

The answer depends upon where the alien spouse is within the immigration process; (1) divorce before permanent residence status is not yet conferred, (2) divorce after receipt of the conditional green card, or (3) divorce after receipt of the unconditional green card.

Generally speaking, an individual with a green card has permanent resident status in the US allowing them to live and work; it does not mean someone is a citizen. An alien spouse may obtain permanent residence status through sponsorship of his or her US citizen or US permanent resident spouse as a result of said marriage. But, if the alien spouse has not yet obtained permanent residence status prior to divorce, the alien spouse cannot obtain a green card based upon their marriage to a US citizen. The divorce decree terminating the legal marriage terminates the alien spouse’s eligibility for US permanent residence status on the basis of that marriage. There is therefore a possibility that the alien spouse could be subject to deportation proceedings.

However, if the alien spouse has obtained a conditional permanent residence card, the answer may vary.  The alien spouse’s permanent residence may be revoked if the divorce occurs within two (2) years from issuance of the conditional green card. This is because before the expiration of the two (2) year conditional green card, the alien spouse must file Form I-751, Petition to Remove the Conditions of Residence. This form is to be filed “jointly” between spouses; however, there is a waiver for those who have divorced their US citizen spouses. The United States Citizenship and Immigration Services would require proof that the union was a good faith union, and not solely for immigration purposes. Though not any type of clear cut official policy or guidelines, the short length of the marriage weighs negatively on this analysis.

If the alien spouse has received an unconditional green card, a divorce would not negatively impact the green card itself. The divorce could however cause a delay in the spouse’s obtaining full citizenship status. If married to a US citizen, there is a three (3) year residency requirement for US citizenship as opposed to the normal five (5) year residency requirement. To benefit from the shorter timetable, the alien spouse must have been married for at least three (3) years prior to the exam date; if the parties have divorced before three (3) years of marriage, and the alien spouse has not been a permanent resident for five (5) years, the alien spouse will have to continue to wait for the five (5) year eligibility time period to apply for US citizenship.

Divorce is never easy, but a divorce intertwined with immigration issues may seem downright impossible. If you’re struggling with similar issues, please contact our family law attorney at Thomas McDonald Law Firm in Miami, Florida for advice.

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