Did you know that you can still complete your application for removal of conditions on your two-year Green Card, to get the 10-year Green Card, even if you divorce the spouse who you petitioned for a Green Card with? Although you are supposed to jointly petition with your spouse for the conditions to be removed, you may apply for a waiver and proceed with your application even if you get divorced during the period when you are a conditional Green Card holder. Read on to learn more about removal of conditions when your marriage ends!

Overview of the Conditional Green Card and Removal of Conditions

If you are a foreign national and you marry a U.S. citizen or lawful permanent resident, and your marriage is less than years old at the time you get your Green Card, you will receive a conditional 2-year green card. The conditional green card is designed to ensure that the marriage is legitimate and prevent fraudulent marriages — hence why the conditional status only applies to marriages that are two years old or less. Once the expiration date of the 2-year Green Card approaches, within the 90-day period before, you must apply for a process called “removal of conditions” in order to verify the legitimacy of your marriage and stay in the United States. If your removal of conditions petition is approved, you will be granted a 10-year green card and have a pathway to citizenship. It’s important to submit your removal of conditions application on time and with accuracy, otherwise you will not be able to stay in the U.S. or get the 10-year Green Card. 

You may also like: Removal of conditions based on marriage to get a 10-year Green Card

What should I do if I divorce while being a 2-year green card holder?

If you and your spouse divorce when you still have your conditional green card, you can apply for a waiver that will allow you to continue with removal of conditions. This waiver will allow for you to be exempt from the joint filing request if you can demonstrate that you still meet the other requirements to obtain a Green Card and can demonstrate that your marriage was in good faith. USCIS wants to ensure that this waiver is not abused by people who enter marriages temporarily and then divorce purely for the intention of obtaining a 10-year Green Card.

Important Considerations when Applying for the I-751 Waiver

There are several factors you should take into consideration if you plan on getting divorced before or during the time when you plan to apply for Removal of Conditions. The first consideration is whether the divorce is already finalized. If you have already finalized your divorce and can submit documentation to USCIS, it will be easier for you to obtain a waiver. If your proceedings are not yet finalized, you will need to obtain evidence that the divorce is in motion or explore other options if your spouse will not file the I-751 with you and you are still formally married. It is important to consult with your immigration attorney about how you can maximize your chances of obtaining a waiver.

The next factor you will need to take into consideration is evidence. If you apply for a waiver, the burden of proof will be on you to demonstrate both that your marriage was in good faith and not an attempt to abuse the immigration system, as well as proof of your marriage ending. You will also need to provide an account of the circumstances under which the divorce occurred and make it clear to USCIS why it ended. Your immigration attorney can guide you through the process of submitting evidence, and you must keep good records of everything in order to maximize your chances of getting the waiver approved. 

Another important consideration is the circumstances surrounding your divorce. When providing an account of your divorce, there are two general categories that USCIS considers: a no-fault divorce, where neither of the individual parties was at fault and the marriage ended in a mutual understanding, or a divorce with fault, where one of the parties engaged in an act like abuse or adultery that caused the marriage to end. USCIS will take the urgency of the waiver into account if you are a victim of battery or abuse, so you will want to provide as much evidence and clarity about your situation as possible if this applies to you. In other scenarios, evidence like proof that you and your spouse attended marriage counseling sessions to reconcile before deciding on divorce could strengthen your case.

If you would like to learn more about applying for Removal of Conditions in the face of a divorce, contact us for an assessment.

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