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What happens if you get separated/divorced while a green card through your spouse is pending?

Updated: Apr 7, 2023


The circumstances of a divorce are never a pleasant topic of conversation, but it is a topic that cannot be avoided. One of the biggest concerns for many immigrant spouses is whether a divorce from their U.S. citizen spouse petitioner could jeopardize their green card.


What is Conditional Residence?


If your residency was granted due to marriage to a U.S. citizen, and you were married for less than 2 years at the time of your green card filing, then your initial “conditional” green card is issued for a period of 2 years (instead of the 10-year permanent resident card).


In order to receive a permanent green card, an I-751 petition must be filed to remove the conditions on residence. This typically must be done jointly with your petitioning spouse, where both of you sign and submit documentation of your continued marriage to USCIS during the 90-day period immediately before your conditional residence expires. It is also a good time to discuss with your attorney whether you qualify to apply for U.S. citizenship too, as your 3-year anniversary as a lawful resident approaches.


Am I able to file to remove the conditions without my U.S. citizen petitioner?


There are many reasons that not all marriages last the full two years. Sometimes, when it comes time to file to remove the conditions on your 2-year card, the marriage may be facing a divorce, or the divorce is already finalized. If you are in divorce proceedings (or your marriage is annulled) before that time and you want to continue living in the U.S., you may still be able to file the I-751 petition along with exemption from the joint filing requirement. Waivers that are likely to be relevant to your case may be based on:


  • Divorce after marriage in good faith

  • Abuse or assaults by the American spouse in a bona fide marriage

  • Extreme hardship on the part of you, the immigrant, if you return to your home country


As an added bonus, a written explanation of why your marriage is ending should also be prepared. If USCIS finds that the reason for the termination of the marriage is the immigrant's fault (by abandoning the spouse or adultery, for example), the agents can deny the I-751 petition.


What is the process for applying for an exemption to the joint filing requirement?


If you have separated and/or started divorce proceedings from your U.S. citizen spouse and he or she refuses to file Form I-751 with you, you should consult with an experienced attorney who can help you make strategic decisions about what to do next. In that case, we can review a number of options available to continue your green card process even though your marriage may have come to an end. It is important to work with an experienced attorney to prepare a strong filing to show why you should have an exception even if you are not filing jointly with the petitioner spouse.

After filing for removal of conditions of permanent residence, USCIS issues a receipt notice that will extend your conditional resident status for 18 months. This form will serve as your green card after your “conditional” expires and will allow you to continue in the same legal status until your case is decided by USCIS.


At Mundo Legal, we have the team and experience requested to help and accompany you during the process of requesting a separation from your spouse and preparing documentation needed to continue in lawful status in the United States.


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