Getting a divorce before or after filing a green card petition

You are married to a US Citizen and you filed your petition for a green card, but now you are going through a divorce, can you keep your green card?

Divorce Prior to Green Card

If you have filed your application for a green card, but have not yet attended your green card interview, and you or your spouse has since filed for divorce, it is going to be nearly impossible for your green card application to continue without the U.S. Citizen spouse.

If the divorce is filed or is happening before the adjudication of your green card, there are very few options for the foreign spouse to obtain a green card.

As long as the foreign spouse is in legal status, they may be able to remain in the United States by changing their status to a nonimmigrant visa category. In this case, the foreign spouse may only remain in the U.S. temporarily, until the duration of the visa is up.

Alternatively, a foreign spouse who has been abused or battered by the U.S. Citizen spouse can still obtain permanent residence, by filing Form I-360 under the Violence Against Women Act (VAWA). This option allows the foreign spouse to self-petition to receive their green card after Form I-360 is approved.

Divorce After Receiving the Green Card

If you have received your conditional green card, and you or your spouse has since filed for divorce, you may still petition to remove your conditions on permanent residence and receive your 10-year green card without your spouse. In order to do so, you must prove that you entered the marriage in good faith despite your divorce, and that you are a person of good moral character. Filing to remove the conditions on permanent residence on your own is known as a waiver of the “joint filing” requirement of Form I-751 petition to remove conditions on permanent residence.

At the time of filing the I-751, there must be a final judgment of divorce. You cannot file to remove your conditions if you are not yet divorced.

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