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I got my green card through my spouse. Can I keep it if I get divorced?

 Posted on July 07, 2020 in Immigration

Divorces are difficult. If you add to that the stress of going through an immigration process, this can be quite taxing. Generally, if your green card has been granted for 10 years, a divorce should not affect your immigration status. However, if you were married for less than 2 years at the time of your green card approval and you received the benefit for being the spouse of a green card holder or U.S. citizen, you green card would be considered “conditional” and only issued for 2 years.

In order to remove the conditions of your green card and receive your permanent status, you will need to submit an application to USCIS. Typically, these applications are submitted within 90 days of your conditional green card expiration date. Couples who are still together need to submit a joint application, evidence of the bona fides of their marriage, and likely attend an additional interview before USCIS issues a decision. Now, the process varies greatly if you are no longer with your spouse, but it’s still viable for most applicants through a waiver. Here are potential options:

  • Your marriage has ended through divorce – Your divorce should be finalized by the time you submit your application. If it’s not, you should be prepared to submit an explanation with your application and describe the reasons why the divorce has not been finalized. In addition, it is likely that USCIS will request the final divorce decree through a Request for Evidence, generally only giving you up to 87 days to respond.
  • You suffered battery or extreme cruelty at the hands of your spouse – This is perhaps the most common option applicants pursue. USCIS will consider any evidence of domestic abuse, including physical violence, threats, verbal, emotional, and financial abuse. A restraining order or reporting violent incidents to the police are not mandatory elements for this option. Also, even if you are still residing with your spouse, you could still qualify for this option as long as you have sufficient evidence to argue your case.
  • My spouse has died – and his or her passing took place after I was granted a conditional green card.
  • Ending my status and being deported would cause me extreme hardship – This is maybe the most difficult category under which you could qualify. You would need to show that the situation in your home country would pose a hardship to you if you had to go back, for instance if you would be targeted by your government due to your political activism.

You can apply under more than one of the above grounds if that is your case. In addition, you can submit a waiver under the above grounds even if you have already submitted your joint application with your spouse. Regardless of which option fits your case, for most situations you will still need to demonstrate that you entered the marriage in good faith. This means showing that you and your spouse intended to form a life together when you got married. This could be demonstrated with evidence of joint bank accounts, tax returns, correspondence to the same address, pictures, affidavits from friends and family members, among others. The evidence should cover the period of time from the granting of the conditional green card and until the time of filing for the removal of conditions and, if needed, up to the time of their interview.

Special evidentiary rules may exist for waiver cases based on extreme cruelty or battery. For instance, if most or all of the bona fide evidence that exists is under the control of the abuser and he or she refuses to provide it, then this could be presented as further evidence of abuse and the applicant may argue that attempting to retrieve the evidence would pose a risk to her or his safety. In addition, waiver requests to remove the conditions on the green card can be filed before, during, or after the 90 day window in which joint requests are required to be submitted. Now, waiting too long is not advisable, given that USCIS may initiate removal proceedings against the applicant if an application is not filed within the required time period.

Regardless of which option you choose, submitting a request to remove the conditions of your green card can be quite burdensome. You should consult a reputable and experienced immigration attorney to evaluate your case.

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