Many immigrants to the U.S. get their permanent resident status and green card through marriage to a U.S. citizen. Despite stories of “green card marriages” where someone marries an American just to live in the U.S. legally, most marriages are based on love, commitment and the intent of two people to build a life together. The United States Citizenship and Immigration Services (USCIS) conducts intensive interviews of people seeking a green card through marriage and their spouses to help ensure that these are “legitimate” marriages.
Even marriages based on love, of course, don’t always endure. If a person has a green card based on their marriage, they often assume that if their spouse sought a divorce (or they did), they’d lose their green card. That doesn’t have to be the case.
Removing conditional status
“Spousal green cards” are conditional for two years. After two years, the green card holder can apply for a permanent green card. They typically need their spouse’s signature on the I-751 Petition to Remove Conditions form that needs to be submitted.
If a person already has their permanent green card, they won’t lose it because of divorce. They would need to commit a criminal offense, fraud or violation of their immigration conditions to lose it. It’s no longer based on their marriage.
If a person is still within that two-year conditional period, things can be complicated. If the divorce is finalized within two years, the ex-spouse cannot sign the I-751 form. If the couple is still legally married, the spouse can sign it. However, they don’t have to – and may choose not to.
When is a waiver of joint filing needed?
If a conditional permanent resident (CPR) is divorced or their soon-to-be ex won’t sign it, a waiver of joint filing is necessary, allowing the conditional green card holder to seek permanent status without spousal approval.
The USCIS will grant this for one or more of several scenarios. One is if the petitioner “entered into the qualifying marriage in good faith, but the marriage was terminated other than by death of the petitioning spouse.” They don’t need to allege domestic violence, although that’s another reason why a waiver may be granted.
If your green card is still conditional as you prepare to divorce, it’s a good idea to get legal guidance to help ensure that you can still remove that conditional status when the time comes.