Marriage is the fastest and most popular way foreigners become American citizens. In fact, according to the Department of Homeland Security, 27 percent of all those who received legal permanent residency between 2006 and 2007 qualified through marriage. Divorce can also affect your path to citizenship.
Citizenship via Marriage
An American citizen can apply for legal resident status for a foreign-born spouse. This allows the spouse to remain in the country without risk of deportation. The American sponsor must submit required forms to the United States Citizenship and Immigration Services. Upon a successful interview, USCIS will grant the foreign spouse legal residency and issue a green card, which allows the foreigner to enter and exit the country without a US visa. Residency status can be changed to American citizenship after the foreigner has lived in the United States for a period of at least 36 months.
Divorce for a Conditional Green Card Holder
A conditional green card is given to foreign-born spouses who become legal residents within the first two years of their marriage. It requires the couple prove to USCIS they are still married in order for the foreign-born spouse to receive unconditional residency in the country. This conditional status was created to combat marital fraud, whereby foreigners marry Americans solely to become US citizens as it faster than normal means. A divorce can slow the path to citizenship if the foreign spouse fails to prove to immigration officials that the marriage was entered into in good faith. If that is the case, she will be deported. Successfully convincing officials the marital union was legitimate will allow the foreign spouse to remain in the country for a period of time determined by USCIS.
Divorce for an Unconditional Green Card Holder
An unconditional green card is valid for a maximum of 10 years, after which the foreign-born spouse must apply for citizenship or renew her green card. The foreign-born spouse can, however, apply for citizenship once she has satisfied the 36-month requirement. If divorce occurs after the foreigner received an unconditional green card, but before the 36-month requirement, she can remain in the United States without fear of deportation. She must, however, wait a minimum of 60 months, instead of the average 36 months, to apply for citizenship.
In the event of a divorce, USCIS officials will question the validity of the marital union when considering whether to extend a foreign spouse's residency in the country. To convince them it was a good-faith marriage, the foreigner must show proof of joint ownership of property, birth of children with the former spouse, or affidavits from non-family members who attended the wedding. USCIS will also consider additional factors, including whether the foreign-born spouse was battered during the marriage or whether she will face hardship due to the loss of her residency status. If USCIS is convinced of a good-faith marriage by the evidence provided, it will extend the period of her green card making it possible for her to legally remain in the United States until it is time to apply for citizenship.
References & Resources
- Center For Immigration Studies: "Hello, I Love You, Won’t You Tell Me Your Name: Inside the Green Card Marriage Phenomenon"; David Seminara; November 2008
- Cundy & Martin, LLC: Citizenship Through Marriage
- Mithras Law Group: Immigration Blog -- Can A Divorce After Issuance Of A Green-card Affect Divorced Spouse’s Right to Obtain U.S. Citizenship?; March 23, 2009
- U.S. Citizenship and Immigration Services: Remove Conditions On Permanent Residence Based On Marriage
- Keen Law Offices, LLC: How Do I Prove a Good Faith Marriage?
- U.S. Citizenship and Immigration Services: INA -- Act 319 - Married Persons And Employees Of Certain Nonprofit Organizations
- U.S. Citizenship and Immigration Services: Sec. 319.1 -- Persons Living In Marital Union With United States Citizen Spouse