Yasin Bilgehan Akalan
Attorney at Law
Immigration Law Expert – Akalan Law Firm
Although marriage-based Green Card applications are among the most common immigration pathways, a divorce that occurs during the process can directly affect the outcome of the application. This article explains in detail at which stages divorce can impact the Green Card process and what exceptions may apply.
If a divorce takes place after the marriage but before filing the Green Card application, the foreign national spouse does not gain eligibility for a Green Card. According to the United States Citizenship and Immigration Services (USCIS), in order to apply for Lawful Permanent Residence through marriage, there must be a valid and existing marriage at the time of filing. Moreover, the marriage must be a genuine marriage.
USCIS Requirement of a “Bona Fide Marriage”
A bona fide marriage means that both spouses entered into the marriage with the genuine intent to establish a life together as a family and to share their lives. (Establishing a Bona Fide Marriage)
A marriage entered into solely for the purpose of obtaining a Green Card is considered a “fraudulent marriage” under immigration law. Such marriages are invalid and subject to severe penalties.
USCIS examines every marriage-based Green Card application to determine whether the marriage was entered into in good faith.
In cases of divorce before filing, the foundation of the application is the “valid and ongoing marriage” with the U.S. citizen or lawful permanent resident spouse. If the marriage ends in divorce before the application is filed, the foreign national spouse is no longer considered married to a U.S. citizen. Therefore, the legal basis for filing an “immigration petition through the spouse” no longer exists.
This requirement is clearly stated in the USCIS Policy Manual: At the time of filing, there must be a valid qualifying relationship. (Qualifying Relationship)If the marriage has ended, the petition cannot be filed because no qualifying relationship exists.
Exception Under the Violence Against Women Act (VAWA)
If the reason for the divorce is abuse or extreme cruelty, the victimized spouse may file an independent petition (self-petition) within two years of the divorce. (Self-Petitioners Eligibility) However, if this exception does not apply, the right to file after divorce is lost.
In conclusion, when a divorce occurs before filing a marriage-based Green Card application, there is no eligibility for a Green Card. USCIS requires that there be a “valid marriage at the time of filing” in order for the application to be accepted. Once the marriage ends through divorce, the qualifying relationship is terminated and the legal basis disappears. The only exception is for cases of abuse under VAWA, which allows the abused spouse to self-petition.
If a divorce occurs after the Green Card application has been filed, the Green Card is generally not granted. This is because the basis of the petition no longer exists. In the marriage-based Green Card process, the fundamental requirement is that the marriage must be valid and ongoing.
The United States Citizenship and Immigration Services (USCIS) requires that the marriage exist at the time of filing the application and continue until a final decision is made. If a divorce occurs before the adjudication is complete, the foundation of the petition—immigration eligibility through the spouse—disappears. In such a situation, the foreign national spouse is no longer considered the “spouse of a United States citizen.”
Exceptions
Violence Against Women Act (VAWA): If the foreign national spouse has been subjected to abuse or extreme cruelty, he or she may continue independently by filing a self-petition, even after divorce.
Death of the Spouse: If the United States citizen spouse passes away during the application process, the foreign national spouse may continue the process through a widow(er) petition.
In conclusion, in most cases, if a divorce occurs after filing the Green Card application, the application cannot be approved because the marriage relationship—the qualifying basis—has ended. The legal requirement that the marriage must continue until adjudication is not met. However, under the exceptions of abuse (VAWA) or death of the spouse, the application may proceed.
One of the most frequently asked questions by immigrants seeking legal status in the United States is whether it’s possible to get a green card through marriage after entering the country illegally.
When a United States citizen or lawful permanent resident files a Green Card petition for a foreign national spouse, the petitioner submits Form I-130 (Petition for Alien Relative). If this petition is approved, the next steps depend on the spouse’s location:
However, if the marriage ends between the time of filing and the interview, both USCIS and the Department of State determine that the petition has lost its basis. For a marriage-based immigration petition to be valid, the qualifying relationship must exist at the time of filing and continue until a final decision is made. (Qualifying Relationship)
Effect of Divorce on Consular Processing
The consular interview occurs after Form I-130 has been approved. If the foreign national spouse attends the interview after the divorce, he or she will no longer qualify under the spousal visa category. This is because the status of being the “spouse of a United States citizen or lawful permanent resident” no longer exists.
Exceptions
In conclusion, if a divorce occurs before the consular interview, the foreign national spouse generally loses eligibility for the Green Card, except under the exceptions of abuse (VAWA) or death of the spouse.
If a foreign national spouse marries a United States citizen or lawful permanent resident, applies for a Green Card, and the marriage is less than two years old at the time of approval, USCIS grants a two-year conditional Green Card.
Ninety (90) days before the expiration of the conditional Green Card, the foreign national must file Form I-751, Petition to Remove Conditions on Residence, with USCIS. Form I-751 must normally be filed jointly by both the conditional Green Card holder and the United States citizen spouse. The purpose is to prove that the marriage was not fraudulent and was entered into in good faith, with the genuine intent of establishing a family. (Establishing a Bona Fide Marriage)
Once approved, the two-year conditional Green Card is replaced by a ten-year permanent Green Card.
Exceptions
If the marriage has ended due to divorce, death of the United States citizen spouse, or abuse under the Violence Against Women Act (VAWA), the foreign national may file Form I-751 with a waiver request. In such cases, the applicant must also provide documentation explaining why the joint petition could not be filed.
A conditional Green Card holder who has divorced a United States citizen spouse may still apply independently for a ten-year Green Card if certain conditions are met:
If these conditions are proven, USCIS allows a good faith marriage waiver (Good Faith Marriage (Divorce))
The reason for the divorce is not relevant. USCIS does not evaluate fault in the divorce but instead reviews the intent at the beginning of the marriage. What matters is that the marriage was not entered into solely for immigration benefits.
If the Green Card holder is divorced, a joint petition cannot be filed. In such a case, the applicant may file an I-751 waiver petition.
In conclusion, if the marriage ends before the conditional Green Card is converted to a permanent one, the process does not end automatically. The foreign national spouse may continue independently by filing Form I-751 with a good faith marriage waiver and submitting evidence that the marriage was real. If USCIS determines that the marriage was genuine, approval of the ten-year Green Card is possible, even if the marriage was short.
a)If the marriage is ongoing: Both spouses file a joint petition (Form I-751).
b)If a divorce has occurred: The applicant files alone with a waiver request. USCIS accepts the “good faith marriage waiver,” but the applicant must prove independently that the marriage was bona fide. (Removing Conditions)
c) If abuse (VAWA) or death of the spouse has occurred: The applicant may also file alone under these exceptions.
If the marriage was more than two years old at the time of Green Card approval, the foreign national receives a ten-year permanent Green Card. This card is “unconditional,” meaning USCIS does not require a further review of the marriage’s validity.
Generally, lawful permanent residents may apply for naturalization (Form N-400), after five years of continuous residence.
a)Marriage-Based Exception: If the foreign national is married to and living in marital union with a United States citizen, he or she may apply for naturalization after three years of continuous residence.
b)Divorce: If a divorce occurs before completing the three years, the “three-year marriage-based exception” no longer applies. The applicant must then meet the five-year general requirement to apply for naturalization.
c)Divorce During the Naturalization Process
As explained above, Green Card holders may apply for United States citizenship (Form N-400) after five years of continuous residence.
However, foreign nationals who obtained their Green Card through marriage to a United States citizen may apply after three years, provided they remain married and living in marital union with the United States citizen spouse. (Married and Living in Marital Union)
aa)Divorce
If the foreign national divorces before completing the three-year period, the “spouse of a United States citizen” status ends. In this case, the three-year early filing rule no longer applies, and the applicant must wait until completing the five-year residence requirement. The five-year period is calculated from the date the Green Card was granted.
bb)Exception – Abuse (VAWA)
If the divorce occurred due to abuse or extreme cruelty, the victimized spouse may still apply under the VAWA provisions. In this case, the applicant may retain eligibility for the three-year rule despite the divorce.
Divorce often results in loss of eligibility during the Green Card and naturalization process. The petition may be denied, or the timeline for citizenship may be extended. However, exceptions such as abuse under VAWA, death of the spouse, or sufficient documentation proving the marriage was bona fide can preserve eligibility.
Therefore, at every stage, the nature of the marriage, the status of the application, and the applicable exceptions must be carefully considered.
One of the most common ways to obtain lawful permanent residency, also known as a Green Card, is through marriage to a U.S. citizen.
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