We’re Separated: Can I Continue With My Marriage-Based Green Card Application?

One can get a green card when living apart and having marital difficulties, so long as you have not gotten a legal separation or divorce.

By , J.D. · University of Washington School of Law

Let's say you came to the U.S. as a student, and fell in love with and married a fellow student, a U.S. citizen. Together, you submitted all the immigration (adjustment of status) paperwork, without a lawyer. You have already been called in for your biometrics (fingerprinting) appointment, and expect to receive a green-card interview appointment notice from USCIS soon.

But your relationship has gotten rocky, and you've stopped living together. Your U.S. citizen spouse is still willing to help you get a green card, but you're both worried that USCIS just think you are committing marriage fraud and deny the green card and maybe punish you both criminally. Should you move forward with this application, and if so, how?

As this article will show, it is possible to get a green card when living apart and having marital difficulties, so long as you have not gone so far as to get a legal separation (possible in some, but not all U.S. states) or actually gotten divorced. Let's look closer at the main legal issues involved, and how to convince U.S. immigration authorities to grant the green card. We'll cover:

  • whether your marriage will, in legal terms, be viewed as bona fide, and
  • how to explain your separation in terms that preserve your ability to claim a bona fide marriage.

Is Your Marriage Bona Fide?

The key thing in deciding whether you deserve a marriage-based green card (U.S. lawful permanent residence) is whether, at the "inception" (beginning) of your marriage, you intended to establish a life together; in other words, were entering into a not only legally valid but also factually bona fide marriage.

The USCIS officer is not supposed to judge whether it is a viable, marriage (likely to survive), just whether it is a real marriage as opposed to a fraud. (See I.N.A. Section 204(c).)

Can You Explain the Situation and Prove That the Marriage Is Bona Fide?

Convincing the U.S. Citizenship and Immigration Services (USCIS) officer who personally interviews you will, of course, be more of a challenge than it would be if the two of you were still living together. In fact, USCIS officers across the various U.S. regions vary in their levels of sophistication. Some might, as you fear, take a simple-minded, "marriage ending, deny the green card" approach to your case.

Definitely make the most of your U.S. spouse's willingness to help you, and be sure he accompanies you to the USCIS interview.

The key thing is to NOT lie and pretend that everything is just fine with the marriage. If you get caught in a lie, it can permanently bar you from eligibility for a green card. (Fraud and violations of immigration laws are grounds of inadmissibility.) There's a high likelihood that you would be caught, by the way, perhaps because either you or your spouse breaks down and admits the truth after enough questioning. (U.S. citizens are notoriously unaccustomed to being interrogated!)

So, you will want to explain the truth of what happened, and provide accurate information about which of you is living where. Prepare plenty of documentation to bring to your interview to show that your marriage was entered into in good faith and for all the right reasons (legally speaking). (See Documents to Bring to Your Marriage-Based Adjustment of Status Interview for details.)

Also think about what documents you can prepare to show that your marriage has hit the rocks for all the reasons that a real marriage hits the rocks, or that you are bothered by and trying to deal with the situation. Affidavits from friends, counselors, and religious leaders with whom either or both of you has discussed the situation or sought help can be good here. A lawyer can help you prepare these, too (they need to be detailed and convincing).

Get Legal Help

For the reasons set forth above, hiring an immigration attorney to help with your case could make all the difference. With the law on your side and the right preparation, you stand a good chance of succeeding in your application for permanent residence.

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