June 2, 2008: Green Card Obtained Through Marriage, What Effect Will Divorce Have?

Green Card Obtained Through Marriage, What Effect Will Divorce Have?

I’ve been married to my husband since 2005. I just received my 10 year residency this year. Even before I received my card, my husband and I have had personality clashes and I seem not to get along with him. If I decide to divorce, will this affect my residency and me being able to stay in the states? I have a steady job and I am very settled here. Your help would be appreciated. Thank you.
— Anna

You are welcome.

Generally, the threshold question is whether the Petitioner and Beneficiary intended to establish a life together when they got married. This basically means that the Petitioner and Beneficiary got married because they loved each other at the time of marriage. If the primary reason at the time of marriage was to circumvent the immigration laws and to obtain an immigration benefit, then this is considered a fraudulent marriage and it will not be upheld as a real marriage under the immigration laws. Assuming you married your husband because you were in love, your permanent residency should be safe, even if you get divorced. Married couples may have countless differences when they get married, but that does not necessarily mean that they did not love each other when they got married.

It appears that the only negative consequence of a divorce in your case is that you will not be able to file for citizenship two years and nine months from the date you became a permanent resident. Instead, you will have to wait four years and nine months. This is so because the citizenship application requires that you prove that you have been married to, and living with, the same United States citizen during that three year period. If you are divorced, you will not be able to prove this.

If you were married for less than two years when your residency was granted, then you would have been granted conditional permanent resident status. If so, you would have to petition to remove that condition during the three month period immediately preceding the two year anniversary of your obtaining the permanent resident status. If a conditional resident gets divorced during the two year period described above, then that individual’s conditional resident status is automatically revoked on the date the divorce becomes final and a waiver must be filed proving the good faith marriage irrespective of the divorce.

You should consult with an immigration attorney to review all of your immigration documentation to verify that you will not have an issue if you decide to divorce your spouse.

Michael Shane and Evan Shane, Immigration Attorneys

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