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Will I Lose My Permanent Residence Status If I Divorce?

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By George Khoury, Esq. on November 08, 2016 2:57 PM

Usually the first question green card holders, or immigrants with permanent residence status, ask their divorce lawyer is whether their divorce will have an impact on their immigration status. Although getting divorced does not mean a green card holder will automatically be deported, if your green card was based on marriage and is still in conditional status, a divorce can make it more difficult to lift the conditional status and legally stay in the US.

Fortunately for permanent residents who have already had conditional status lifted, it is highly unlikely that a divorce will have any impact on your immigration status, unless it's discovered that your whole marriage had been a fraud, and not the kind of fraud that married couples usually divorce over, but rather in the sense of defrauding US immigration law. However, those who still are in conditional status need to be concerned about the I-751 petition that must be filed to lift the conditional status. Typically, the petition is filed jointly by spouses 90 days before the two year conditional status expires.

Will Divorce Prevent Lifting Conditional Status?

Luckily, the USCIS recognizes that legitimate marriages fall apart, and does not penalize immigrants who, in good faith, marry US citizens. Even if a green card holder who is still in conditional status gets divorced, so long as they meet the deadlines and requirements for filing the I-751 form to remove the conditional status, they can have their permanent residency status approved. The caveat is that the process becomes trickier during or after a divorce.

If the divorce was not pleasant and the non-immigrant spouse refuses to file the I-751 jointly, a waiver request must be made to waive the joint filing requirement. Victims of domestic violence can also request a waiver of the joint filing requirement and can take advantage of a special program that provides DV victims green cards.

If the divorce is not finalized, USCIS will request that the final divorce decree be provided when the divorce is finalized in order to approve the waiver of the joint filing requirement. Due to this additional administrative requirement, it is advisable to start the I-751 process ASAP after a divorce is filed or finalized, so as to avoid the need to file a late application. Late applications are immediately denied, and must be appealed to a director by showing good cause for the late filing, which will lead to deportation if the appeal is denied.

Divorce Lawyer or Immigration Lawyer?

While divorce lawyers know the ins and outs of the divorce process, immigration issues tend to fall outside their realm of expertise. To ensure that you don't lose your permanent resident status, consulting an immigration attorney before starting the divorce process is a smart move, even if you've already had your conditional status lifted.

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