Does Divorce Make it Impossible to Keep Your Green Card?

January 27, 2016

Despite the best of intentions, not all marriages last forever. If you recently obtained your two-year conditional green card through marriage, you might think that a divorce would make it impossible to maintain your permanent resident status. In the ninety-day period before expiration of a conditional green card, all conditional residents must submit Form I-751, Petition to Remove the Conditions of Residence, to transition to a “regular” green card valid for a full 10 years. This petition is usually filed jointly by the petitioner spouse and the beneficiary spouse. It allows the government to verify that a marriage used to obtain a green card is still intact and that the parties are still in a bona fide marital relationship. Much of the same types of evidence submitted in an initial spouse petition are considered by USCIS in adjudicating Form I-751 – evidence of financial commingling, joint ownership of property, residence at a common address, joint tax filings, and beneficiary designations made in connection with employment benefits or estate planning documents. A waiver of this joint filing requirement is available, however, to an applicant who can demonstrate that a marriage was entered into in good faith despite being terminated through divorce or annulment.

Key to the success of a single-filer I-751 petition is the ability to state when and why the marriage terminated and to demonstrate through documentary evidence that the marriage was intact until the relationship deteriorated. Preservation of records is important and can be an issue if the conditional resident spouse is no longer on good terms with the petitioner spouse. Affidavits from close friends or family members can often provide insight to the government on the quality of your relationship and the circumstances surrounding its deterioration. USCIS will also seek proof of termination of the marriage through the submission of a final decree of divorce.

Timing is very important in the filing of an I-751 petition. If you are contemplating divorce or going through divorce proceedings as a conditional resident, contact the immigration attorneys at Fears Nachawati for a consultation on your options.

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