Divorce is an unfortunate reality for many couples. In fact, approximately 41 percent of first marriages and 60 percent of second marriages end in divorce. Divorce is a stressful and unsettling time for anyone, impacting a person’s living arrangements, financial situation, and parenting relationships. But when one of the spouse is a foreign national, the divorce can have even farther-reaching consequences.
The impact of a divorce on permanent resident status depends, in large part, on when the divorce occurs. After a green card is issued, the permanent residence status is conditional for a period of two years. After the couple has been married for two years, they can jointly petition USCIS for removal of the condition on the resident status. If the divorce occurs after the condition has been removed from the permanent resident status, it will have little to no impact on the divorced alien’s residency status. The only impact that a divorce would have on a green card holder with unconditional permanent resident status is a delay in obtaining citizenship since the residency requirement is three years for those applicants married to a U.S. citizen and five years for all other applicants.
If a couple is divorced within two years of obtaining a green card, the permanent resident status could be in jeopardy since permanent resident status is conditional for the first two years. In other words, a divorce generally terminates the conditional permanent resident status.
In some situations, however, the conditional green card holder may be able to obtain a waiver of permanent residence termination. In order to have the condition removed from permanent resident status, the foreign national must submit Form I-751 along with the request for a waiver of the joint filing requirements. Waivers are more likely to be granted if the petitioner can show that the marriage was entered into in good faith and that there was abuse by the U.S. spouse or extreme hardship will occur to the foreign national if returned to his or her country of origin.
If the divorce was finalized before the end of the two-year conditional period, the foreign national should also be prepared to provide a written explanation detailing the reasons for the divorce. USCIS grants I-751 waivers on a discretionary, case-by-case basis after considering the individual circumstances. For instance, if USCIS determines that the foreign national spouse was at fault for the divorce by abandoning the other spouse or committing adultery, the waiver may be denied. But if, on the other hand, USCIS determines that the foreign national spouse made a good faith attempt to make the marriage last or the foreign national spouse is the victim of domestic abuse, USCIS will be more likely to grant a waiver.
Divorce is never easy, and it is even more stressful when one of the spouses is a foreign national.