Immigrants who arrive in the United States on a visa can only remain in this country for the period of time noted in their visas. Visas carry work restrictions for immigrants. Permanent residents differ from visa holders in that they hold a green card that gives them the right to reside in the United States permanently and seek employment wherever they wish. Under certain circumstances, an immigrant who has already obtained permanent resident status may lose that status after a divorce.
U.S. Citizenship and Immigration Services (USCIS) awards a green card to an individual who submits a marriage-based Adjustment of Status application and has it approved. Although there are exceptions to the rule, a permanent resident generally retains her status after getting divorced, even if the immigrant's marriage to a permanent resident or U.S. citizen was the basis of the original Adjustment of Status application. However, should the immigrant divorce prior to receiving a green card, USCIS has the right to deny the Adjustment of Status application and begin removal proceedings.
Conditional Permanent Residency
If the immigrant applying for permanent residency has been married to her sponsor for less than two years and USCIS approves the application, the immigrant receives a “conditional” green card. This gives the immigrant permanent residency, but she will lose that status if she and her spouse do not fill out a joint application to remove the conditions on her residence. They specifically need to apply during the 90 days before the immigrant spouse's second anniversary as a conditional resident. The expiration date on the green card is also the date of her second anniversary as a conditional resident. Failure to apply could result in loss of conditional resident status and removal from the country. Should the immigrant and her sponsor divorce before the two-year mark, USCIS reserves the right to revoke the immigrant's status as a permanent resident. If the divorce occurs after the immigrant and her spouse convert the conditional green card to a permanent one, USCIS will not revoke the immigrant's status simply because of the divorce.
If an immigrant fails to file an application with USCIS to remove the conditions on her green card because of a divorce, she may still receive non-conditional permanent residency under certain conditions. If the immigrant can prove the marriage was legitimate and she entered into the union in good faith, USCIS may waive the joint application requirement. Two ways an immigrant can prove a former marriage was legitimate are by providing proof she and her former spouse owned joint property or had a child together.
If an immigrant is eligible to file a permanent residency application based on marriage, but the immigrant's spouse is abusive, the immigrant has the right to divorce her spouse and apply for permanent residency on her own. USCIS gives immigrants who divorce abusive spouses two years from the date of the divorce to file permanent residency applications. In this scenario, a divorce neither revokes the immigrant's already-held permanent residency nor does it prevent the immigrant from obtaining a green card.
References & Resources
- U.S. Citizenship and Immigration Services: Rights and Responsibilities of a Permanent Resident
- U.S. Citizenship and Immigration Services: Green Card for an Immediate Relative of a U.S. Citizen
- Heather L. Poole Professional Law Corporation: Conditional Green Cards
- Zhang & Associates: Divorce After Issuance of Conditional Green Card
- U.S. Citizenship and Immigration Services: Battered Spouse, Children & Parents
- Lawyers.com: Immigration – Green Card FAQs
- Comstock/Comstock/Getty Images