Many married people in the U.S. are legally living here based on a green card that they obtained as a result of getting married to a U.S. citizen. There are a number of ways to obtain a green card, with marrying a U.S. citizen being only one of them, but when a marriage doesn’t work iou, a person whose green card is in fact based on the marriage may be concerned that pursuing a divorce will affect their right to continue to live in the U.S. In some cases, there is indeed reason for concern, but in many other cases a person can seek a divorce and yet still retain his or her green card.
If you are on a green card and are considering divorce, you are advised to speak with both a family law attorney and an immigration attorney before moving forward with filing for a divorce, but below are a few general points to keep in mind.
Is your Green Card Conditional or Not?
Although a green card is the immigration status that grants you permanent residence, the USCIS will sometimes grant green cards which are conditional and thus not literally permanent. One of the most common type of conditional green card situations arises when a married couple has been married for less than two years.
It should come as no surprise that there are many cases in which a person marries a U.S. resident specifically to obtain the great card and not because they legitimately want to be married. The reason for the conditional green card status is because the government wants to take precautions against this phenomenon.
If you have already had the conditions removed from your green card based on your marriage (this requires an additional application to the USCIS), then the fact that you are obtaining a divorce will not affect your right to keep your green card and stay in the U.S. But if you have not had the conditions removed on your green card, then there will be some additional steps to follow.
Divorce and a Conditional Green Card
If you have not yet had the conditions on your green card removed but are seeking a divorce, or have already obtained a divorce, you can still apply to have the conditions removed so that you can continue to live in the U.S.
As stated on the USCIS website, your green card conditions may be removed (meaning you can stay in the U.S.) if you:
- Entered into a marriage in good faith, but the marriage ended through divorce or annulment; or
- Entered into a marriage in good faith, but either you or child were battered or subjected to extreme hardship by your U.S. citizen or permanent resident spouse.
As part of this process, you and your immigration attorney may need to present evidence that you and your spouse sincerely worked at having a legitimate marriage, and thus did not enter the marriage as a sham, and/or that you suffered abuse from your spouse. While divorce in most states does not require a showing of fault, evidence that the other spouse was at fault in causing the divorce may be helpful in your immigration issues.
Again, these are immigration issues which should involve consulting with an immigration attorney, but, for purposes of family law, the takeaway is that divorce while on a green card does not necessarily mean you will jeopardize your green card status.
For any questions on family law in California, contact the Law Office of Kelley C. Finan today to schedule a consultation to discuss your circumstances.