Who is a conditional resident in the US?
Getting a divorce or separating from their spouse will affect the legal status of those who live in the US as conditional residents. If you came to settle in the US within less than two years of getting married, for example on the K3 Spouse Visa, you are considered to be a conditional resident. That also covers entering the US and adjusting your immigration status while already being in the country.
This status allows foreign spouses of US citizens to enjoy the freedoms permanent residents have but only for two years. The US immigration officials are committed to preventing marriage fraud so the goal of this testing period is to test whether the marriage is authentic.
Within ninety days before the two-year testing period is about to finish, the conditional residents have to file USCIS Form I-751 to adjust their status to permanent residency. Typically both you and your spouse will need to sign the petition. You will also need to include evidence showing that your marriage is still ongoing.
Will divorce affect the status of a conditional resident?
If your marriage to a US citizen ends in divorce before the two-year-long period is over, getting permanent residency in the US will be more difficult but it is not impossible.
When filling the I-751 Form, you will have to ask USCIS for a waiver of having to fill the petition together with your spouse. You will also have to submit substantial evidence proving that your marriage was authentic and that you did not enter it only to receive a US Green Card. To show that you entered the marriage in good faith you can, for example, submit:
- A joint lease or any other evidence showing that you lived together before the divorce
- A joint bank account or another proof of combining your finances
- Proof that you were covered by the same health insurance
- Birth certificates of any children you and your spouse have together
- Photos showing that you would spend a lot of time together and do things married couples do.
If your divorce has not yet been finalised when Form I-751 is due, the processing time of your application for permanent residency can be extended.
If immigration officials decide that the evidence you have submitted is not sufficient, you can risk losing your immigrant status and being obliged to leave the US.
Will divorce affect the status of someone who already has permanent residency in the US?
If you are getting a divorce after you have been married for more than two years, you are less likely to face deportation. As after these two years you should already have permanent residency status in the US, you should be allowed to remain in the country.
Nevertheless, if you want to apply for US citizenship, a divorce might make you wait longer. Those who are married to US citizens have to meet the three-year residency requirement before submitting their application. It is necessary, however, that during these three years the immigrant stays in a relationship and lives with their US spouse.
Those who do not have a spouse who is a US citizen have to spend five years living in the US prior to applying for naturalisation. The same applies to individuals who get divorced before receiving their US citizenship.
If you got divorced before attending your naturalisation interview, you have to be prepared to answer questions investigating what went wrong with your marriage.
Will separation affect my immigration status in the US?
While divorce occurs when a marriage is legally and officially ended by a court, separation means that the couple remains married but lives apart. Getting separated does not automatically deprive you of the chance to get a US Green Card but it can make the process of applying for it more challenging. For you and your spouse to be considered legally separated you must have a written agreement approved by a court, deciding that you will be living apart.
If by the time of separation you already have permanent residency in the US, your status will most likely not be affected. If before separation you were living in the US as a conditional resident, you will have to apply for a waiver of the joint petition requirement. You will also have to provide evidence showing that your marriage was real. If your waiver application is approved, you will still be able to get your permanent residency status.
What evidence do I need to include for the waiver of the joint filing requirement?
If you have gotten divorced but you want to remain in the US and apply for permanent residency, you can file Form I-751 at any point. To submit it alone, however, you will need to apply for a waiver of the requirement to fill it together with your partner. For the waiver to be approved, you will need to submit evidence showing that your marriage was authentic and that it was not your fault that it ended.
Evidence you might have to submit include but is not limited to:
- Proof of disagreements regarding issues such as raising children or managing finances
- Proof that it was your spouse’s fault that the marriage ended, for example, if they cheated or abused you
- Proof that you tried to reconcile and fix your problems by, for example, attending marriage counselling sessions.
If you are not sure what evidence to include or how to fill the Form I-751, seek advice from our immigration lawyers.
How can IAS help?
If you are thinking of getting a divorce and you are worried about losing your immigration status in the US, talk to our experienced immigration lawyers. They will analyse your situation and explain how your immigration status can be affected by a divorce or separation. Our lawyers will also advise you on what you should do in order to remain in the US.
Thanks to the help of an immigration lawyer you can make sure that you submit all the evidence needed for the waiver of the joint filing requirement. This way you can increase the chances of your waiver application being successful.
To find out more about how our immigration lawyers can help, get in touch today on +1 844 290 6312.
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