A grinning immigrant father with his little girl holding up their passports to the camera.

Can Divorce Affect Immigration Status in 2023?

Can Divorce Affect Immigration Status in 2023?

Divorce can be tough for anyone, regardless of age or status. From contentious disputes about complex property division to time-consuming litigation in family court, family disputes can take a heavy emotional and financial toll on California families.

Divorce-related stressors can be compounded for foreign-born couples or individuals who lack formal U.S. citizenship, as legal matters can have far-reaching impacts for immigrants and their loved ones. The ripple effect of divorce can extend to every aspect of our lives, from professional careers to education to personal relationships.

If you're preparing for divorce as a noncitizen or green card holder, feeling anxious about the upcoming proceedings is normal. Can divorce lead to removal orders? What are some common impacts of divorce on immigration status? In this blog, we’ll explore some potential impacts of divorce on immigration status to help prepare foreign-born divorcees for what lies ahead.

Keep reading to learn the implications of marriage dissolution for green card holders in California.

Understanding Marriage Green Cards in the U.S.

A family-based green card permits eligible noncitizens to file for lawful U.S. residency through a qualifying family member, including spouses. Green cards secured through a marital union are more commonly known as a marriage green card.

Benefits for Green Card Holders

Also known as lawful permanent residents (“LPRs”), green card holders can enjoy various benefits in America. In addition to the ability to live and work permanently in the U.S., other benefits include the opportunity to attend U.S. universities, receive federal government aid, live travel anywhere in the U.S. with ease, and apply for U.S. citizenship within 5 years (or 3 years if married to a U.S. citizen).

Benefits of Marriage Green Cards

An added bonus for marriage green card holders is that family-based applications typically entail shorter wait times for applicants, allowing married couples and loved ones like siblings and parents to obtain lawful residency in the U.S. faster than alternative paths might allow.

However, there are key differences between marriage green card types. A marriage green card is either conditional or permanent, which is an essential distinction when understanding how divorce can affect immigration status.

Conditional vs. Permanent Green Card Holders

Upon approval of a marriage-based green card application, the conditional green card is initially issued to the foreign spouse. This conditional green card is valid for two years and requires additional steps to remove the conditions and obtain lawful permanent residency.

On the other hand, a permanent marriage green card is granted when the foreign spouse's marriage is at least two years old at the time of approval or when they have already completed the process to remove the conditions of their conditional green card.

Divorce can have different outcomes for conditional and permanent green card holders. Consider the following overview of the potential outcomes of divorce for each:

Divorcing with a Conditional Green Card

When a couple with a conditional green card goes through a divorce, it can complicate the process of obtaining lawful permanent residency. However, conditional green card holders can file for a waiver of the joint filing requirement on Form I-751, Petition to Remove Conditions.

Form I-751: Petition to Remove Conditions

Conditional green card holders who are no longer married or face extreme hardship if they were to return to their home country can file Form I-751 individually.

This can permit individuals to apply for a waiver of the joint filing requirement. It’s crucial to provide compelling evidence demonstrating that the marriage was entered into in good faith ("bona fide") but ended for legitimate reasons.

Upon approval of the waiver, the foreign spouse can receive a ten-year green card, granting them lawful permanent residency status. A qualified divorce attorney can assess the unique circumstances of your case to best prepare you for the legal proceedings in court.

Divorcing with a Permanent Green Card

For divorcees with permanent green cards, immigration status is generally unaffected. Once granted, a permanent green card provides lawful permanent residency without requiring a joint filing or conditional period.

Remember that any significant change in circumstances, such as evidence of fraud or misrepresentation, can still lead to immigration issues. It’s important to seek counsel from an experienced attorney when needed who can advise you and your family regarding next steps.

Can conditional green card holders file for lawful permanent residency after divorce?

Yes. It’s possible to obtain lawful permanent residency in the U.S. after divorce, even with a conditional marriage green card. Although California divorces can have serious impacts on a couple’s immigration status, especially conditional green card holders, these individuals can still pursue lawful U.S. residence and ultimately citizenship by following the appropriate legal avenues.

If you’re the spouse of a U.S. citizen or conditional green card holder undergoing a California divorce, it’s imperative to file Form I-751 (“Petition to Remove Conditions”) through USCIS as soon as possible to ensure continued residency in America.

Guiding San Diego Families Since 1990

Our compassionate family lawyers have extensive experience navigating a wide range of family disputes in San Diego and beyond. Whether you’re preparing for a contentious divorce or experiencing anxiety about an upcoming custody battle, our knowledgeable team has helped Californians navigate the complexities of family law for decades.

Since 1990, Family Law San Diego has been dedicated to serving couples, families, and children in need throughout our community, equipping them with wisdom, courage, and sound counsel to turn the page and start the new chapter they deserve. Reach out to our office to learn how we can help you navigate the complexities of family court.

Divorce can affect every aspect of our lives. Our firm is here to help you navigate this difficult season. Call (619) 577-4900 to schedule a free consultation.