How Will Divorce or Separation Affect My Immigration Status?

Naturalization applicants (green card holders) who are beneficiaries of family-based immigration through marriage to a US citizen are required to remain married and live together in the marital union until the naturalization process is complete.

According to the United States Citizenship and Immigration Services (USCIS), an applicant whose marital relationship has been terminated (via divorce) or whose marriage has been altered by a legal separation does not meet the ‘marital union’ requirement.

However, if the separation is informal and the spouses still live together in the same home, the applicant’s eligibility for naturalization would be determined by a USCIS officer.

Before reaching a decision, the USCIS officer may consider the following:

• The duration of the separation
• Whether the couple intends to make the separation permanent
• Whether one or both of the spouses are involved with third parties
• Whether the spouses still support each other financially and otherwise (and their children, if any, during the separation).

Conditional Permanent Residents

Conditional permanent residency is granted to foreign nationals married to US citizens whose marriages are less than two years old. The conditional green card received here is valid for two years.

To become a lawful permanent resident, the applicant must file Form I-751, Petition to Remove the Conditions of Residence, within 90 days before the conditional resident green card expires. The form is usually filed jointly with the citizen spouse, and to be eligible, the applicant must remain married to their citizen or permanent resident spouses before filing.

However, if you’re divorced or separated before your two-year conditional permanent resident status expires, you may be allowed to file Form I-751 without your spouse (or ex-spouse) if you’re able to show that:

• Your marriage ended in a divorce even though you married in good faith.
• You married your spouse in good faith, but you or your child experienced domestic violence and extreme cruelty from your citizen or permanent resident spouse.
• Terminating your immigration status and deportation from the US would cause you extreme hardship.

In such circumstances, you would need to request a waiver of the joint filing requirement so you can proceed alone.

If you do not meet these criteria, you may face deportation or removal at the end of the two years when your conditional resident status expires.

Immigrant Spouse Seeking Adjustment of Status

If you’re a foreign national who entered the US via a non-immigrant visa, such as a K-1 fiance visa and got married to a US citizen, you would need to go through the adjustment of status process to be able to remain in the US after your visa expires.

In most cases, an adjustment of status based on marriage requires that your spouse files an immigrant petition on your behalf (as a sponsor) and fulfills all other legal requirements for immigration sponsors.

If you get divorced or legally separated before your adjustment of status is complete, your application may be denied, and you might need to leave the US once your visa expires. This is because, for family-based adjustment of status, the requirement for a qualifying relationship (in this case, a marriage) is continuous until the final decision is reached and you receive your green card.

However, there are other legal options available for you to explore. For instance, if you’ve suffered abuse at the hands of your (former) US citizen or permanent resident spouse, you can apply for a green card as a self-petitioner under the Violence Against Women Act (VAWA). You can contact an Atlanta deportation lawyer to determine if any of the available options apply to you.