The Trump administration’s severe immigration crackdown is causing fear and uncertainty among immigrants from all walks of life.
The administration is using unusual—in some cases almost unprecedented—enforcement tactics, such as invoking the Alien Enemies Act of 1798, targeting refugee status and birthright citizenship, narrowing and revoking legal immigration pathways, expanding the reach of ICE into even sensitive locations like schools and houses of worship, and targeting legal immigrants who have spoken out against certain policies.
It appears that it will also become more challenging for immigrants to get a green card through marriage to an American citizen; spouses (both in and outside the U.S.) will likely face longer processing times and increased scrutiny, requiring extensive documentation and “enhanced vetting.”
The situation is evolving rapidly, at times without clear policy-change announcements.
If you are in a marriage where one spouse is an immigrant, and you’re considering ending the marriage, it’s important to understand how divorce could affect that person’s immigration status. The legalities surrounding immigration and divorce are very complex, but here are some basic guidelines:
Are you getting separated or divorced?
Divorce is when the court legally ends your marriage. Separation means you are living apart but still legally married. This is an important distinction—nuances vary state-to-state and can affect your status differently. The U.S. Citizenship and Immigration Service (USCIS) will consider the laws of your state to determine whether you are separated or divorced.
What is your current immigration status?
If you have any questions or confusion, consult with a knowledgeable immigration attorney. Depending on several factors, a divorce or separation could impact your legal status in this country.
A Permanent Resident Card (PRC), commonly called a Green Card, is a document issued by the U.S. government that gives an individual the right to live and work permanently in this country; the holder is known as a Lawful Permanent Resident (LPR).
Eligible non-citizens can file for legal U.S. residency through a qualifying family member; this is called a family-based green card. When your qualifying family member is your spouse, it is a marriage green card.
Green card holders can apply for U.S. citizenship in 5 or 3 years if married to a U.S. citizen.
Your status will not be affected if you are already a citizen during your divorce.
For green card holders:
If you obtained your green card through marriage, your status is permanent or conditional.
A conditional green card is issued to a foreign spouse upon approval for a marriage-based green card. It is valid for two years; additional steps are required to acquire lawful permanent residency.
A permanent marriage green card can be granted when you have already been married for two years at the time of approval, OR once you have completed the requirements to apply for permanent residency, jointly filed a Petition to Remove Conditions (Form I-751) while still married, within 90 days, and are approved.
If you already have a permanent marriage green card, when you get divorced, the divorce should not change your immigration status. However, it will change how long you wait to apply for naturalized citizenship to 5 years (instead of only 3). When you become eligible, you will need to go through a review process with USCIS to prove that even though you ended up getting divorced, your marriage was “bona fide”, in good faith, and not fraudulent.
However, getting divorced while still on a conditional green card can significantly complicate the process of acquiring lawful permanent residency, particularly because the Petition to Remove Conditions (Form I-751) is a joint form. In divorce, a conditional green card holder can request a waiver of the joint filing requirement and file as an individual. Again, you must prove that even though it ended in divorce, your marriage was genuine, not a fraud, and there were legitimate reasons for ending it. The path is more challenging, and you will likely face intense vetting about the details of your marriage, but if approved, you can be granted permanent residency.
Remember that evidence of misrepresentation or fraud at any point can lead to serious immigration issues, including deportation. If you are an immigrant facing separation or divorce, it is crucial to seek the advice of an attorney who understands the complex interaction of immigration and family law.
By Debra Schoenberg
