The Impact of Divorce on a Marriage-Based Green Card Application

Marriage to a U.S. citizen or lawful permanent resident is one of the most common pathways to obtaining lawful permanent residence in the United States. However, when a marriage ends in divorce, it can create significant uncertainty for individuals who are in the middle of the immigration process or who already have conditional resident status.

Divorce on a marriage-based green card application can significantly affect the outcome of an immigration case. Whether the divorce occurs before approval or after conditional residence is granted, applicants must understand how it impacts their legal status and available options.

Understanding how divorce affects a marriage-based green card application can help applicants protect their immigration status and determine the appropriate next steps.

How Marriage-Based Green Cards Work

A foreign national may apply for a green card through marriage to a U.S. citizen or lawful permanent resident by filing an immigrant petition and adjustment of status application.

The typical process includes:

1. Form I-130 (Petition for Alien Relative). Filed by the U.S. citizen or permanent resident spouse to establish that a valid marriage exists.

2. Form I-485 (Application to Register Permanent Residence or Adjust Status). Filed by the foreign spouse if they are eligible to adjust status in the United States.

3. Supporting Documentation. Applicants must provide evidence showing that the marriage is genuine, including shared financial records, photographs, leases, and other documentation.

4. Biometrics Appointment. USCIS collects fingerprints and background information.

5. Marriage-Based Green Card Interview. Both spouses usually attend an interview with a USCIS officer.

   
   

During this process, immigration officers focus heavily on whether the marriage is bona fide, meaning it was entered into in good faith and not solely for immigration purposes.

How Divorce Affects a Marriage-Based Green Card Application

What Happens if Divorce Occurs Before the Green Card Is Approved

If the couple divorces before the green card application is approved, the petitioning spouse can no longer sponsor the immigrant spouse. In most cases, the pending green card application will no longer be valid because the qualifying relationship has ended.

In such situations, the foreign national may need to explore other immigration options, such as:

• Employment-based visas

• Family petitions through other qualifying relatives

• Humanitarian immigration options in limited circumstances

  
  

The timing of the divorce can therefore have a major impact on the outcome of the case.

Divorce After Conditional Permanent Residence

If the marriage is less than two years old at the time the green card is approved, the immigrant spouse receives conditional permanent residence. Conditional residence lasts two years and requires the couple to later file Form I-751, Petition to Remove Conditions on Residence. Normally, this petition must be filed jointly by both spouses within the 90-day period before the conditional green card expires.

However, divorce can complicate this process.

Filing a Waiver After Divorce

If the couple divorces before filing the joint petition, the immigrant spouse may request a waiver of the joint filing requirement. To qualify for this waiver, the applicant must demonstrate that:

• The marriage was entered into in good faith, and

• The marriage ended in divorce or annulment.

  
  

USCIS will carefully review evidence showing that the relationship was genuine. Examples of helpful documentation may include:

• Joint bank accounts or credit cards

• Lease agreements or mortgage documents

• Tax returns filed jointly

• Insurance policies listing both spouses

• Photographs and travel records

• Affidavits from friends or family members

  
  

Even after divorce, a strong record of a shared life together can support approval of the petition.

Additional Waiver Options

In some cases, conditional residents may qualify for other types of waivers when filing Form I-751. These include:

• Battery or extreme cruelty by the U.S. citizen or permanent resident spouse

• Extreme hardship if the applicant is removed from the United States

  
  

These provisions exist to ensure that individuals are not forced to remain in unhealthy or dangerous relationships in order to maintain immigration status.

Practical Considerations

Individuals facing divorce while their immigration case is pending should consider several important steps:

• Preserve documentation showing the authenticity of the marriage

• Maintain copies of financial records and correspondence

• Seek guidance before filing any immigration petitions after divorce

  
  

Because both immigration procedures and family law proceedings may occur simultaneously, careful planning can help avoid complications.

Divorce does not always end the possibility of obtaining or keeping lawful permanent residence. However, it often changes the legal strategy required to move forward. Understanding the rules surrounding conditional residence and waiver petitions is essential for anyone navigating both the immigration process and marital separation.

Patricia Elizee is the Managing Partner of Elizee Law Firm, located at 1110 Brickell Avenue, Suite 315, Miami, Florida 33131. Founded in 2012, the firm represents clients in both immigration and family law matters and is known for its compassionate, client-focused, and results-driven approach. Ms. Elizee earned her Juris Doctor from the University of Miami School of Law and her Master of Laws (LL.M.) from the University of Washington School of Law.