What Happens if You Divorce a US Citizen Before Becoming a US Citizen?

Your life changes once your marriage ends and the divorce is finalized. But if you’re not a United States citizen, you may face other challenges, such as the loss of your legal status. You may face deportation to your home country if you have not filed your joint petition for full residency.

U.S. immigration laws can change at any time. For the most up-to-date information about what can happen if you divorce your U.S. citizen spouse, talk to an experienced immigration lawyer.

What To Do if You Divorce Your US Citizen Spouse

Generally, if you’re an immigrant and you marry a U.S. citizen, you can get legal status with a conditional green card. As an immigrant spouse, you can receive conditional permanent resident status after two years of marriage. As a lawful permanent resident (LPR), you can also work in the U.S.

You can get full permanent resident status after filing a petition with U.S. Citizenship and Immigration Services (USCIS). After a waiting period and other legal requirements, you can apply for full U.S. citizenship. However, you could lose your status if you divorce before filing your joint petition for full residency.

If you’re a conditional resident and then divorce your spouse, you’ll need to remove the residence restrictions. You should file Form I-751, Petition to Remove Conditions on Residence, with USCIS. As a divorcee, you should file this form with a request for a waiver of the joint filing requirement.

If you are in deportation or removal proceedings, you must apply for a waiver before the immigration court issues the final deportation or removal order. If you don’t, you will need to leave the country.

Exceptions to the Deportation Rule

Some people who divorce without permanent resident status won’t be automatically deported. There are exceptions to the deportation rule available for many non-citizen green card holders. An immigration lawyer can help you file a waiver to remain in the United States.

Some exceptions to the deportation rule include:

• Good faith: You may qualify for an exception if you can prove that you entered your marriage in good faith and not just for immigration status. You must show the marriage ended due to no fault of your own. You may be able to prove to the court that you entered into a bona fide marriage by showing that you lived together as spouses, had a child together, and owned property together.
• Extreme hardship: If being deported from the U.S. would cause you extreme hardship, you may qualify for an exception.
• Domestic abuse: The Violence Against Women Act (VAWA) permits waivers for battered spouses. You may qualify for an exception and be able to stay in the U.S. if your spouse treated you with extreme cruelty or abuse.

Couples Who Divorce After Two Years of Marriage

Generally, if you’re an immigrant who divorces a U.S. citizen after two or more years of marriage, and you already have a green card or permanent resident card, you may be less likely to face removal proceedings. If you divorce after more than two years of marriage, you likely can remain in the United States.

However, the divorce may delay the citizenship process. There is only a three-year residency requirement for immigrants married to U.S. citizens to apply for citizenship. Those who aren’t married to U.S. citizens must meet a five-year residency requirement.

How Does Your Divorce Affect the Immigration Rights of Your Family Members?

Remember, your divorce could affect more than just your ability to remain in the country. The divorce could also impact immigrant visa applications for other relatives you were sponsoring to bring to the United States. This could include children, parents, and other family members.

Child Custody and Property Rights Should Not Change

Your citizenship status has no bearing on a court’s award of child custody or property division decisions. Child custody decisions are made according to the child’s best interests — not the parents’ immigration status. Marital property division also depends on your state’s laws, not whether you are a U.S. citizen.

Get Help With an Experienced Immigration Attorney

Divorce proceedings are stressful enough without having to worry about your immigration status. However, in many cases, an immigration attorney may be able to help you remain in the United States and get a fair divorce settlement. A lawyer can help you with forms, explain the application process, and seek an adjustment of status that would allow you to stay in the country.