Green cards are issued to qualifying immigrants based on specific eligibility categories. Immigrants who marry a US citizen or lawful permanent resident may qualify for a green card under the immediate-family category, one of several family-based eligibility categories. Furthermore, the immigrant visa issued to a marriage-based green card holder will be based on the qualifying immediate family relationship, too
Unfortunately, a pending green card application based on marriage to a US citizen or lawful permanent resident will be denied if the marriage ends in divorce or annulment before the green card is issued.
USCIS may grant an exception in limited circumstances when the divorce or annulment is due to abuse, but these cases are rare, and the abuse must be well-documented. It’s safe to say that in the vast majority of cases, getting a divorce before your green card is issued will result in an automatic denial from USCIS.
When it comes to the immigrant visa attached to a family-based green card application, the effect of a divorce or annulment isn’t as cut and dry. While your green card application will be denied, your immigrant visa—providing it’s already been issued, and you were inspected and admitted to the United States at a US Port of Entry—may not be automatically rescinded.
If you are in the United States with a marriage-based visa when your marriage ends in divorce or annulment, you should speak with an immigration attorney as soon as possible. Regardless of the course of action you decide upon, it’s better to be proactive than to wait for USCIS to issue you a Notice to Appear in immigration court.
What Happens If You Get a Divorce After Receiving Your Green Card?
Once you receive your green card from USCIS, your immigration status is locked in until the green card expires. If you were married less than two years before you applied for the green card, your conditional green card will expire in two years. If you were married for two years or longer before you applied for the green card, your unrestricted permanent resident status won’t expire for 10 years. Obviously, the latter scenario is ideal as it affords you much more time to build a case for why you should not have your permanent resident status revoked when your green card expires.
The Effect of Divorce on a Conditional Green Card
As mentioned previously, USCIS issues a conditional green card when the permanent resident has been married to a US citizen or lawful permanent resident for less than two years at the time of filing. The reason for the “conditional” status is that USCIS wants to see that the couple is still married and living together for at least two years before issuing a standard 10-year green card. This requirement is intended to discourage marriage fraud, which is a major concern for immigration authorities.
The good news is that getting a divorce or annulment from your American spouse doesn’t automatically jeopardize a conditional green card (assuming you have already received the green card). The bad news is that when it comes time to renew your green card in two years, you’ll need to petition to have the conditions on permanent residency removed, and that will be much more challenging if you are divorced or separated. Divorcing your American spouse means you failed to meet the conditions placed on your permanent resident status, and you will need to request a waiver to have the conditions removed.
Generally speaking, you can apply for a waiver and removal of conditions at any time during the two-year conditional green card period. However, if your petition is denied, you will be placed into removal proceedings.
Removal Proceedings (Deportation)
Removal is the legal process by which US immigration courts determine if an alien (the legal term for a non-citizen, with or without a green card) should be deported from the United States. Immigration and Customs Enforcement (ICE) is the federal agency tasked with initiating and prosecuting removal cases. When ICE launches a removal case you will typically receive a Notice to Appear in immigration court, or you may be arrested and detained.
If you are placed into removal proceedings as a result of your divorce and subsequent denial of legal immigration status, you need to hire an immigration attorney that specializes in deportation defense as soon as possible. There are legal means to seek relief from removal, though they are limited and difficult to approve. Some examples of forms of relief from removal include:
- Adjustment to Permanent Residence Status (you qualify for a green card based on another eligibility category)
- Cancellation of Removal (for immigrants who have been physically present in the US for at least 10 years, can demonstrate good moral character, and have a spouse, parent, or child who is a US citizen or lawful permanent resident that will experience exceptional and extremely unusual hardship if you are deported)
- Close family relationship to a US citizen (e.g. if you and your American spouse had a child together, or if you have another immediate family member who is a US citizen)
- Withholding of Removal
Petitioning for relief from deportation in immigration court is not something you should attempt on your own. If you believe you qualify for any of these forms of relief from removal, you’ll need an experienced immigration attorney to maximize your chances of success.
In a worst-case scenario where you have been placed into removal proceedings and you do not qualify for relief from removal, it may be wise to consider negotiating for voluntary departure. You’ll need to admit that you have no legal right to remain in the United States and agree to depart the country on your own, but choosing to leave the country of your own free will makes a monumental difference should you apply for US immigration benefits in the future.
In return for saving the US government the trouble of removal proceedings and deportation, you’ll be allowed a short amount of time to settle your affairs before moving back to your home country. Most importantly, your record will not include a removal order or the associated 10-year ban on returning to the United States, so you will be eligible to apply for a visa or green card much sooner and with fewer hurdles.
Receive Immigration Help in Arizona
Regardless of your current position in your green card application process, if you’re thinking about getting a divorce and you’re located in Arizona, JacksonWhite can help. The best thing to do would be to speak with an immigration attorney before you file for a divorce, that way you know what will happen with your green card status once it has been filed.
If you’re past that point already and looking for someone to help you with your deportation case, we can also help.
Call our Immigration team at (480) 626-2388 to discuss your case today.
Schedule Your Consultation
Fill out the form below to get your consultation and discuss your best legal options.