Divorce While a Green Card Is Pending

By Ciele Edwards

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When U.S. Citizenship and Immigration Services grants a foreign-born individual permission to permanently live and work in the United States, it issues him a permanent residency certificate. Although not green, a permanent residency certificate is often referred to as a “green card.” Individuals planning to immigrate to the United States must have a sponsor. If the U.S. citizen sponsoring the individual is her spouse, getting a divorce while the green card is pending could threaten the immigrant's status in the United State.

Marriage Based Application

An individual can apply for a green card under a variety of circumstances. One circumstance that entitles an immigrant to permanent residency is marrying a U.S. citizen. The immigrant and his sponsor file Form I-485 in an effort to adjust the immigrant's status from that of a nonresident alien to that of a permanent resident. A valid marriage is a requirement for filing a marriage-based permanent residency application. If you and your spouse divorce while the I-485 is pending, but before you receive your green card, you no longer have grounds under which to receive a marriage-based green card and USCIS will deny your permanent residency application.

Employment Based Application

An immigrant's green card sponsor does not have to be a family member. Employers can also sponsor immigrants. Many different visa categories exist for immigrant workers, each with its own requirements, but employers must typically provide evidence to USCIS demonstrating that the immigrant possesses a specialized skill necessary for the work, or there are no local workers that qualify for the position. Getting a divorce while an employment-based green card application is pending does not affect your immigration status because your permanent residency application was based on your employment – not your marriage.

Conditional Green Card

If you apply for a green card immediately after your marriage to a U.S. citizen, the green card you receive is conditional and only valid for two years. After the two-year conditional period elapses, you and your spouse must apply together to have the conditions removed. Should you and your spouse divorce before the two-year conditional green card expires, you can apply for a waiver with USCIS that will allow you to remain in the United States based on the fact that you entered into a legitimate marriage in good faith. If your waiver is approved, you will receive your permanent green card – even if you no longer have a sponsor. Conditional green cards do not apply to couples that were married for more than two years when they first submitted a permanent residency application.

Battered Spouse Exception

If you are married to a U.S. citizen who qualifies to sponsor you for permanent residency, yet your spouse is abusive, divorcing your spouse does not automatically terminate your pending green card application. To retain your eligibility for permanent residency, you must prove to USCIS that your marriage to the abuser was legitimate and that the two of you cohabited prior to your divorce. You have two years to file a green card application after divorcing an abusive spouse.