What Happens to My Conditional Green Card If I Divorce Same-Sex Spouse Within First Two Years?

Officials will look at the marriage that led your green card to see whether it was the real thing. They might look at your other marriages, too, so be prepared.

For several years, U.S. authorities have recognized same-sex marriage as a basis for marriage-based permanent residence (a "green card"). Under federal law, same-sex marriages are currently treated the same as any other marriage. This includes the immigration-law rule that when permanent residence is based on a new marriage (less than two years old), the permanent residence will be "conditional," and you will be given a two-year green card.

What Is a "Conditional" Green Card?

The "condition" referred to is that you have to file an I-751 petition with U.S. Citizenship and Immigration Services (USCIS) to renew your two-year green card before it expires. This petition involves providing documentation to show that your marriage is bona fide; in other words, you married for love and to create a life together, not just to get an immigration benefit. In literal terms, this usually means showing proof that you still live together, mix your finances and property, and so forth. (For more information, see Marriage-Based Conditional Residents: When and How to Apply for a Permanent Green Card.)

Sometimes, though, marriages don't work out in those first two years. Immigration law allows any applicant (from a same-sex marriage or an opposite-sex marriage) to show that when the marriage occurred, it really was to establish a life together and was not just to get an immigration benefit, and continue on with the quest for permanent residence regardless of divorce. (For details, see Divorce and Your Conditional Residence Status: How to File a Divorce Waiver With Form I-751.)

The rules are no different for same-sex couples, but some extra considerations are useful to bear in mind.

What If I Have Married Both a Woman and a Man in the Past?

It is common for applicants for U.S. green cards to have more than one marriage in their past. Sometimes there was an old marriage before getting permanent residence. Sometimes there has been a new marriage after permanent residence. Applicants reasonably worry about what happens if one marriage was to a woman and the other to a man. Will USCIS look at this history with suspicion?

Whenever USCIS removes conditions on residence, the key question is whether the marriage that led to permanent residence was truthful or a trick. Your focus should NOT be on your other marriages, only the one that led to a green card. The history of what happened when you were dating, at the wedding, and after the wedding are all important.

When you apply to USCIS to remove conditions on your residence, include proof of this history. Start with this focus. It is all that is legally required and in many cases, it will lead to a positive outcome. But if USCIS still has questions or you are still concerned, think about how to describe your identity to help frame your application.

If Helpful, Explain Your Sexual Identity to USCIS Officials

Now is your chance to educate officials about your sexual identity. The USCIS official might not be comfortable talking about sexuality, but because it could be central to your identity, it is important that you are comfortable discussing or explaining it, either within your documentation or in a personal interview if you are called in for one.

Most USCIS officers will understand the terms "gay" and "lesbian" without extra explanation, but other identities might be less clear. If you identity as "bisexual," "sapiosexual," "pansexual," "queer," or in any other way, tell the immigration official. If you identity as "bisexual," a powerfully simple argument is to point out that the ‘b' in "LGBTQ" stands for "bisexual." Explain that sexuality is complex, consisting of more than just sex and gender. Explain that sexuality is culturally specific; so if you identity as "two-spirit," "hijra," "third gender," or in any other way, tell the official.

Additionally, explain that sexuality can change over time, especially when moving from the cultural norms of one country to the cultural norms of another. It might be that you identified as "gay" or "lesbian" before you realized that the box was too constraining for you. Perhaps you were exposed to ideas of sexuality that you had not encountered before, but that felt right to you.

Explaining your personal journey could help convince USCIS that your attraction to different people was sincere. If you still feel pressure from society, family, or friends, talk about this fact, as well.

Ultimately, though, it is not just your word that should establish this. Instead, you should gather strong documentary evidence.

Strong Documentary Evidence Can Include a Letter From a Mental Health Professional

USCIS likes documentation. A strong application for any immigration benefit includes different kinds of reliable evidence. Letters from mental health professionals are especially helpful if your sexual identity has developed over time.

If you have been talking to a psychologist, therapist, counselor, or other mental health professional, ask them to write a letter of support. But take care to make the letter strong and reliable.

A strong letter has details about your personal history, including your sexuality. Share your sexual identity, cultural heritage, and relationship history with your mental health professional. If you had to hide your relationship, talk to your mental health professional about why. Share how you realized your sexuality and how you show it. Share how your friends and family reacted. If you still feel pressure from society or family, talk to your mental health professional about it. Then ask that person to explain in a letter about the struggles you have faced, with some detail. That makes the letter strong.

But the letter should be reliable, as well. USCIS questions letters that come after a small number of visits, as if to manufacture evidence for the immigration application. Meeting with a mental health professional only one time will not provide the kind of insight that USCIS prefers. Instead, try to talk with the person on several occasions over a period of time. The more visits, the better.

Other Documentary Evidence Can Include Affidavits and More

Maybe you have not spoken to a mental health professional, but you have spoken to close friends or family. Ask them to write letters explaining what they have seen.

Importantly, friends and family should offer only information that is based on what they've personally seen or heard. Like the letter from a mental health professional, USCIS wants the letter to be strong and reliable.

Ask your friend or family member to set forth several examples. A friend or family member who helped you through a difficult time, for instance, might describe what happened, how you reacted, and what happened next. If you experienced emotional or physical pain or violence because of your sexuality or the persons you were dating, ask the letter writer to describe that. This makes the letter strong. Then ask your friend or family to take the letter to a notary public to sign and date it and have it notarized. This makes the letter an affidavit, something immigration officials find reliable.

In addition to the letter, consider evidence that celebrates your background. If you were fully open about your relationship, you can provide joint leases, joint utility bills, joint bank accounts, and similar documentation. If you had to hide your relationship from family or friends, explain that fact to USCS and look for the kinds of evidence described in We've Been Closeted: How Do We Prove to USCIS Our Same-Sex Marriage Is Bona Fide?

For example, if you and your ex-spouse attend Pride celebrations or other LGBTQ-focused events, try to provide photos and discuss the events. Or if you both traveled together, provide plane tickets or receipts to show your trip. If you and your ex-spouse considered adopting or conceiving children, ask your physician to write a letter of support. This evidence, along with your explanation of your identity and background should give you a solid basis to remove conditions on your residence even after your divorce.

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