New York Lawyer's Legal Updates

Can I get a Green Card after Divorce or Separation from a US citizen?

Author: New York Green Card Attorney Alena Shautsova

When a non-US citizen marries a US citizen, he/she can obtain legal status in the US though the sponsorship filed by the US citizen. If a foreign spouse is overseas, the US citizen has to file a family petition and then the foreign spouse will apply for an immigrant visa; if the foreign spouse is in the US he/she will go through adjustment of status process to become a US permanent resident.

Under the US immigration law, to prevent fraud in spousal immigration, the government first gives the foreigner a conditional status if the marriage with the US citizen is younger than 2 years at the time of the adjudication of the immigrant application. If the spouse is overseas, he/she comes to the US with a CR visa; if in the US, he/she gets a conditional green card.

Within 90 days of the second anniversary of the conditional status, the couple has to file I-751 petition to remove the condition so that the non -citizen can receive permanent resident status and later apply for naturalization.

The issue arises when the couple is no longer together by the second anniversary of the conditional residency. In this situation, often, the non-citizen does not know what to do: can he/she stay in the US legally or does he/she has to leave the US?

The law does not resolve the situation for a couple who is separated. It means that if the spouses no longer live together, the conditional resident will not be able to file for removal of the condition by him/herself. In this situation, the conditional resident is “stuck”: a joint filing cannot be filed because there is no vital marital union; the waiver of the joint filing, absent battery and/or hardship will not be granted. As such, the non-resident should file for divorce and once divorced, he/she can proceed with submission of I -751 under the exception of joint filing.

If the spouses are divorced, then the non-citizen can proceed with the filing without the US citizen but must demonstrate that the marriage was a bona fide one. Sometimes it is a challenging task as if the marriage was a short one, the non-citizen will lack sufficient evidence to convince USCIS that the waiver of joint filing has to be granted.

It is important to know that if the I -751 form is not approved, the DHS will terminate the conditional status and will issue a Notice to Appear, placing the non-citizen into removal proceedings.

05 November 2014
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