How Can I Protect My Immigration Status in a Divorce If I’m Still a Conditional Resident?

Divorce is one of the most stressful of human experiences, and it only gets worse when one spouse's immigration status is dependent upon the other, as is the case if the immigrant has "conditional resident" status. We're talking about a situation where a foreign-born person receives an initial approval of conditional U.S. residency based on marriage to a U.S. citizen or lawful permanent resident, but because the marriage is relatively new, the immigrant's status will expire in two years unless they take additional procedural steps to become a permanent resident (described below).

In the worst case, divorcing a U.S. citizen or resident can end the immigrant's right to move forward and obtain U.S. permanent residence from U.S. Citizenship and Immigration Services (USCIS). However, by learning about the relevant legal issues before the divorce is final, or at least before submitting all the required immigration paperwork to go from conditional to permanent residence, you might be able to avoid some of most serious possible problems. Specifically, we'll address:

• problems that divorce can create for a conditional U.S. resident
• whether to request a waiver because the U.S. spouse or ex-spouse won't or can't sign onto the key form requesting permanent residence (Form I-751)
• how to overcome "bad faith" allegations made by the U.S. spouse in presenting one's case to USCIS
• what to expect from USCIS after submitting an I-751 with a waiver request
• how divorcing might delay the immigrant's prospects for naturalized U.S. citizenship, and
• whether your immigration status will be impacted if you divorce only after USCIS approval for lawful permanent residence.

Why Divorce Can Threaten an Immigrant's Conditional Resident Status

Broadly speaking, U.S. immigration law requires that, in order to turn conditional residency into permanent residency based on marriage, the immigrant must show that:

1. the marriage to a U.S. citizen or lawful permanent resident petitioner is bona fide and was entered into in good faith (is not as a fraud or sham to get a green card), and
2. the marriage lasted at least two years beyond the date of the immigrant's approval for U.S. conditional residence.

Both of these requirements can lead to problems for a conditional resident who is in divorce proceedings, yet is expected to apply for permanent residence before the two-year anniversary of their conditional-residence approval. This application needs to be done using Form I-751, which is normally prepared and signed jointly by both spouses, as a cooperative effort.

But if the relationship is going sour and divorce proceedings are underway, the U.S. spouse might not be willing to sign. And once the divorce is final, the U.S. spouse truly can't sign, because they're no longer a qualified petitioning spouse.

Should You Request a Waiver of the Requirement to File a Joint Petition?

If you finalize your divorce to a U.S. citizen while still a conditional resident, but still want a green card, you must submit to USCIS not only Form I-751, but a request for waiver of the usual requirement that you and your U.S. spouse file the I-751 jointly, with both signatures. This allows you to request that USCIS make your conditional residence into permanent residence without the support of your U.S. spouse.

You must accompany this request with the divorce decree or settlement, proof that the marriage was entered into in good faith, and a statement as to why you got divorced. (See Divorce and Your Conditional Residence Status: How to File a Divorce Waiver with Form I-751.)

Proof that the marriage was entered into in good faith (not fraudulently) is crucial to receiving USCIS approval of permanent residence. What's more, because USCIS has discretion about whether or not to approve the I-751 waiver (in other words, the agency is not legally obligated to grant it), you might have to show not only good faith upon entry to the marriage, but also that it wasn't your (the non-citizen's) fault that the marriage failed.

The worst-case scenario would be one in which the divorce was granted due to the non-citizen spouse's adultery or abandonment. A best-case scenario would be a no-fault divorce.

In either case, submitting proof that the couple attended marriage counseling can be a good way to show that the marriage was entered into in good faith, though that alone does not guarantee that the waiver request will be granted.

Additional possibilities for a waiver of the joint filing requirement include:

• asking for a waiver based on the hardship you would experience if denied permanent residence; which waiver, technically speaking, doesn't require a showing of good faith marriage (though if actual marriage fraud is suspected, you're unlikely to gain USCIS approval), and
• asking for a waiver based on spousal abuse, battery, or extreme cruelty by the U.S. spouse.

You can apply for more than one waiver at the same time. However, because these are complex to prepare and argue, your best bet is to see an attorney for help.

Problem in Preparing I-751 Evidence of Good Faith Marriage: Typical Divorce Petitions Allege Bad Faith

A divorce legally begins when one party files a petition for it in court. A divorce normally ends in one of two ways:

• either the spouses come to an agreement (called a ‘Marital Settlement Agreement') on issues including splitting up assets and liabilities, amount of alimony, and child support, and visitation, or
• the case goes before the judge during a hearing, and the judge issues an order saying that the spouses are legally divorced (called a ‘Divorce Decree').

In many, if not most, divorce proceedings where immigration status is at issue, the U.S. spouse adds "bad faith" to the grounds for divorce—in essence, swearing under oath, under penalty of perjury, that the marriage is fake and that the non-citizen spouse married in order to get a green card.

Many divorce attorneys add these grounds to their petitions for divorce as a matter of course, as a way of applying pressure, perhaps not even thinking about the immigration consequences for the non-citizen. And in the hostile atmosphere of most divorces, many spouses forget the good times, focus on the bad, and convince themselves that their spouse was only in it for the green card.

This problem often arises when the divorce is settled instead of proceeding to a court determination. Once the judge rules that this agreement is acceptable and enters it into the court record, and both parties enter the divorce into the state's official department of records, there is no way to undo the U.S. citizen spouse's allegation of bad faith post-settlement. (The exception would be if the U.S. spouse is prepared to go to prison for lying under oath.)

This problem can also arise if the divorce goes all the way to a court proceeding. If the U.S. citizen spouse alleged bad faith in the divorce petition, and is able to prove it to the court, the exact language in the divorce decree issued by the judge will become crucial to determining how the non-citizen's immigration matter will proceed. If the divorce decree specifically mentions that the marriage was made in bad faith, the non-citizen's chances for immigrating to the U.S. are practically nil.

The key thing to understand is that USCIS will require a copy of either the divorce decree or marital settlement agreement as part of the non-citizen spouse's I-751 paperwork, and will take note of any allegation that the marriage was made in bad faith.

How Can Conditional Resident Deal With Wrongful Allegations of Bad Faith in a Divorce Petition?

If you are an immigrant whose spouse alleged bad faith in your divorce petition, understand that such allegations, despite being sworn to, are not legally considered "facts." You can still present evidence to show that you entered into the marriage in good faith.

Having such allegations in your record does mean, however, that the spouse alleging the bad faith marriage will, practically speaking, not be able to provide any support for your application for permanent residence. Any such support would contradict what that person swore was true in the petition for divorce.

If your divorce isn't yet final, it might be better to avoid settlement and let the case proceed to trial, so that the court can issue a divorce decree. A spouse who alleged bad faith would therefore have to prove it in court before it would be entered into the divorce decree. If all goes well, the U.S. spouse will be unable to prove bad faith, and this won't have the potential to become an issue for the immigrant later.

The divorce decree must ultimately be submitted to U.S. immigration authorities along with the Form I-751 asking to remove the conditions on your residence, which you will want to accompany with a request for a waiver of the joint-filing requirement.

What Happens After I Submit My Form I-751 and Waiver Request to USCIS?

After you submit your Form I-751 and waiver request, USCIS will review it and issue you what's known as a Form I-797 receipt notice. This allows you to live and work in the U.S., and acts as your temporary green card while you await a final decision on your request for permanent residence. (See How Does a Conditional Resident Prove Status With a Pending I-751?)

Be sure to save copies of all the paperwork you submit to USCIS, and all the paperwork you receive from U.S. immigration authorities, and bring it to any scheduled interview.

How Does Divorce Affect My Progress Toward U.S. Citizenship?

An immigrant who has been married to and living with a U.S. citizen has to wait only three years after getting a green card to apply to become a naturalized citizen. After a divorce, however, you will no longer qualify for this exception, and will have to wait the usual five years before becoming a U.S. citizen. See When Can I Apply for U.S. Citizenship? for details.

What If I File for Divorce After Getting My Permanent Green Card?

If you file for divorce after USCIS has approved your going from conditional to permanent residence, the divorce will not change your immigration status directly. It will, however, as mentioned above, force you to wait five years instead of three to become a naturalized U.S. citizen. (Also see Can I Apply for Citizenship If I've Divorced the Person Who Got Me My Green Card?) And if there were allegations that you had entered into a bad faith marriage, USCIS might take another look at that issue when you apply to naturalize.

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