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May 4, 2023

The Impact of Your Marriage Status on Your Marriage Based Green Card

Divorce or legal separation is generally a stressful or unsettling event in the life of a couple. But this process can be even more challenging if you are in the United States on a marriage-based green card. This may have you concerned about your future in the US and whether or not you can still get a green card through marriage.

How Divorce or Separation Affects Your Green Card Application Through Marriage

People often ask, “Can I get a green card through marriage if I no longer live with my spouse?” To obtain an American green card through marriage, you must be legally married to a U.S. citizen or lawful permanent resident and meet other eligibility requirements.
If you are no longer living with your spouse, it may be more difficult to prove that your marriage is genuine and not solely to obtain a green card. In general, if you are still married but no longer living together, you may still be able to obtain a marriage-based green card if you can show that you have a bona fide marriage, which means that you have a genuine relationship with your spouse and intend to continue the marriage. However, this can be more difficult to prove if you are not living together.

What If You Divorce Before Receiving Your Green Card?

Divorcing your U.S. citizen spouse before receiving your green card does not automatically disqualify you, but it does complicate the process.

Key Considerations:

• You must apply for a waiver of joint filing if you can no longer file Form I-751 jointly.
• You’ll need to prove your marriage was genuine using strong documentation.
• If you’re still within the two-year conditional residence period, you’ll need to justify your separation with evidence that supports the bona fide nature of your marriage.

Renewing Your Conditional Green Card After Separation Or Divorce

For residents who have a 10-year green card, the marital status does not matter. To replace or renew your green card, you can submit Form I-90, Application to Replace or Renew Permanent Resident Card.

In separation, the couple is still technically married, which means it does not necessarily influence immigration proceedings. A couple may continue to seek permanent residency for the non-citizen spouse if they remain lawfully married after the separation.

However, a divorce with your U.S. citizen spouse can affect your green card status or your immigration process as a whole if you have applied for a green card through marriage. Typically, conditional resident status obtained through marriage is valid for two years only. The couple can file a waiver together after two years by submitting Form I-751 (Petition to Remove Conditions of Residence).

However, if you get divorced before receiving your permanent residence status, it may be difficult to file a waiver for your two-year conditional residence status, but it is still possible to do so.

What Happens If USCIS Denies Your Green Card After Divorce?

If USCIS determines that your marriage was not legitimate or lacks sufficient documentation, they may deny your application. In such cases:

• You may receive a Notice to Appear in immigration court
• Removal (deportation) proceedings could begin
• You might be able to file an appeal or motion to reopen your case

An experienced attorney can help you build a stronger case and navigate these legal challenges.

Understanding the Affidavit of Support After Divorce

When your spouse sponsors you, they file Form I-864, Affidavit of Support, agreeing to financially support you. Even after divorce, the sponsor may remain legally obligated to support you until:

• You become a U.S. citizen
• You work 40 quarters (10 years) in the U.S.
• You leave the U.S. permanently or pass away

This is a binding legal contract and should not be ignored in post-divorce green card planning.

How To Prove That Your Marriage Is Genuine

A two-year conditional green card is issued by USCIS under the circumstances where the couple gets divorced before the non-citizen spouse has obtained the status of permanent resident in the U.S., and during these two years, USCIS determines whether or not the marriage is genuine.

Green card weddings require USCIS to take further measures, mandated by immigration law, to verify the couple’s good faith. After the two years have passed, the couple must submit a joint petition (Form I-751, Petition to Remove the Restrictions on Residence) with proof of the legitimacy of their marriage. This includes things like:

• Shared lease or mortgage
• Joint bank accounts
• Joint credit cards
• Health or auto insurance policies listing both spouses
• Photos and travel itineraries together
• Statements from friends and family

What If Your Sponsor Withdraws Support or You’ve Faced Abuse?

If your U.S. citizen spouse withdraws their sponsorship, or if you’ve experienced abuse during the marriage, you may still be able to stay in the U.S. through alternate legal remedies:

Options Include:

• I-751 Waiver for Good Faith Marriage
• VAWA (Violence Against Women Act) self-petition
• Extreme Hardship Waiver

These pathways allow you to legally remain in the U.S. and pursue permanent residency even if the marriage ends or becomes harmful.

Can I Still Naturalize After Divorce?

Yes, but the timeline changes. If you are still married to a U.S. citizen, you can typically apply for citizenship after 3 years of permanent residency. However, if you divorce:

• You’ll need to wait 5 years as a permanent resident before applying for U.S. citizenship
• USCIS may also scrutinize the history of your marriage during the naturalization interview

Can You Remarry and Apply for a New Green Card?

Yes, if your previous marriage ended in divorce and not in a finding of marriage fraud, you can marry a new U.S. citizen or permanent resident and apply for a green card again. However, USCIS will scrutinize multiple marriage-based applications more carefully.

What Is Adjustment of Status, and Does Divorce Affect It?

Adjustment of Status (AOS) is the process used by someone already in the U.S. to apply for a green card. If you are adjusting status through marriage:

• Divorce before approval can derail your AOS
• You may have to leave the U.S. or find another basis for residency (employment, asylum, etc.)

How Long Does the I-751 Process Take After Divorce?

• The processing time for Form I-751 with a waiver can take 12–24 months.
• During this period, you will usually receive a 24-month extension letter.
• If your petition is strong, USCIS may waive the interview. If not, a Stokes interview may be scheduled.

Frequently Asked Questions (FAQs)

Can I still get a green card if I’m legally separated?

Yes, but you’ll need to show stronger evidence that your marriage is real.

What happens if my spouse withdraws the I-130 petition?

Your application will be halted. You may need to apply under VAWA or re-file through a new petition.

Can I remarry during the conditional green card period?

Yes, but it will not protect your green card status unless the original marriage was proven to be genuine.

Can I stay in the U.S. while waiting for my I-751 waiver?

Yes, if your previous green card is valid and USCIS issues a receipt notice, you are in a lawful status while waiting.

What documents help prove a bona fide marriage?

Utility bills, lease agreements, joint finances, family photos, affidavits from friends, and travel records.

Consult a Professional Immigration Attorney

It is important to consult with an immigration lawyer who can review your specific situation and advise you on the best course of action. They can help you gather evidence to demonstrate the bona fides of your marriage and advise you on any additional requirements that you may need for getting a green card through marriage.

Get Expert Legal Help From Sidman Law Group

We specialize in marriage-based green cards, immigration waivers, and USCIS interview preparation. Whether you’re separated, divorced, or facing a complicated case, we can help.

Call us now at 818-981-0352

Or fill out our online form, and we’ll get back to you quickly.