The question of “can divorce during the Green Card application process result in losing the right to a Green Card?” is one of the most frequently asked questions. The short answer is that it depends on the circumstances; in some cases, it may still be possible to obtain a Green Card, while in others, it may not. Let’s discuss these scenarios.
First Scenario: Let’s say a U.S. citizen and a foreign national fell in love and got married in the U.S. and want to start the Green Card process. If a divorce occurs before starting the process, then there is nothing that can be done. Unless there was violence or similar circumstances, no right to a Green Card will arise.
Under the Violence Against Women Act (VAWA), which applies to both women and men, if the U.S. citizen spouse subjects the foreign spouse to cruelty or violence, the foreign spouse can apply for a Green Card regardless of whether a divorce occurs. However, if a divorce has occurred, the application must be made within two years from the date of divorce.
Second Scenario: If a divorce happens by mutual agreement after the application is submitted, it might not be possible to obtain a Green Card. However, exceptions for violence still apply. In addition to violence, exceptions can also be made in cases involving a K-1 Fiancé(e) Visa and the death of the U.S. citizen spouse.
Third Scenario: Consider the situation where the U.S. citizen spouse is abroad. If a divorce happens before a visa interview at the consulate after marriage, unfortunately, it’s highly unlikely that the foreign spouse will be able to obtain a Green Card.
Fourth Scenario: There might be an exception if the foreign spouse comes to the U.S. on a fiancé(e) visa but the marriage ends before obtaining a Green Card. If the foreign spouse can prove that the marriage was genuine on their own, obtaining a Green Card might be possible.
Fifth Scenario: Assuming the application is approved and a conditional (2-year) Green Card is issued. If a 10-year Green Card is issued, the genuineness of the marriage is not questioned again in a second interview. However, if someone received a 10-year Green Card and applies for citizenship within 3 years, the marriage needs to have continued for these 3 years.
If a 2-year Green Card is issued, an application to “remove conditions” can be made within the last 90 days before it expires. If a divorce occurs before making this application, one can still apply for a “waiver.” If the individual can prove the marriage was genuine on their own, removing conditions can proceed without issues. This also applies in cases of violence or death. However, if there are no issues in the marriage, one must wait until the last 90 days to apply for removal of conditions. If a divorce happens during this application phase, informing USCIS and applying for a waiver is still possible.
After marrying a U.S. citizen and obtaining a Green Card, if the marriage continues, one can apply for citizenship within 3 years. If a divorce occurs during this application, except for cases of violence, the application may not be approved. In such cases, the individual must wait 5 years from the approval of the Green Card.