Dear Sophie: Can I still get a green card through marriage if I’m divorcing?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie,

I received a conditional green card after my wife and I got married in 2019. Recently, we have made the difficult decision to end our marriage. I want to continue living and working in the United States.

Is it still possible for me to complete my green card based on my marriage through the I-751 process or do I need to do something else, like ask my employer to sponsor me for a work visa?

— Better to Have Loved and Lost

Dear Better,

I’m sorry to hear your marriage didn’t work out. Rest assured, you can still proceed with getting a full-fledged green card even though you and your wife are divorcing. Listen to my recent podcast with Anita Koumriqian, my law partner, in which we discuss the removal of conditions on permanent residence for people who got two-year green cards through marriage.

As you know, since you were married for less than two years when you applied for your green card through marriage, you were issued a conditional green card that is only valid for two years rather than a 10-year green card. The purpose of the I-751 is to show that the couple entered into a genuine, good faith marriage. Usually, couples must file an I-751 petition together. However, an individual may file a petition without a spouse if any of the following apply:

• If the marriage ended through annulment or divorce.
• If the U.S. citizen spouse died.
• If the conditional resident (and/or children) was battered or subjected to extreme cruelty.

If your divorce is not yet finalized and you don’t have a family law attorney yet, I do recommend that you work with a family law attorney, who is necessary to help streamline the process. I also recommend consulting an immigration attorney as soon as possible to prepare the I-751 filing since it can get tricky for an individual in divorce proceedings. Both need to work together and in parallel to ensure that everything goes smoothly for you with U.S. Citizenship and Immigration Services.

When to file to remove conditions on permanent residence

The I-751 should be filed within the 90-day period before your conditional green card is set to expire. I recommend filing as soon as you can within that window. Keep in mind that, if you file your I-751 petition too early, it may be returned to you. And if you file it after your conditional green card expires, you not only face having to leave the U.S., but USCIS could also deny your petition if you fail to provide a compelling reason. If you are in this situation, definitely let your immigration attorney know.

Must prove good-faith marriage

Even though you are divorcing, you must submit evidence with your I-751 petition that you married for love (not just for a green card!). To do that, you must show that you “braided your lives together,” as Anita says. That means you should submit documents and other evidence that show you were building a life together, such as:

• A lease or mortgage documents that show you were living together.
• Financial records that show you commingled your assets, such as joint savings and checking accounts with transactions demonstrating the account was active, and federal and state tax returns filed together, insurance policies that show each other as the beneficiary accounts.
• Receipts from sessions with a marriage counselor.
• Joint utility bills.
• Documentation that your wife went through in vitro fertilization treatments.
• Birth certificates of any children you had together.
• Receipts showing you traveled together.
• Photos with one another, family and friends.

Divorce documentation

If your divorce is not yet finalized, you will need to submit a copy of the divorce petition showing the proceedings have started. In order to get a 10-year green card, your divorce will need to be finalized, which is why having an attorney who can expedite your divorce case is crucial.

If you live in California, Colorado, Massachusetts or more than a dozen other states, you can get what’s called a bifurcated divorce, which is when the dissolution of a marriage is finalized even before other details, such as separation of assets or the custody of children, has been completed.

If you still have a cordial relationship with your soon-to-be ex, that could be helpful: I once had a client who was unable to get her divorce finalized in time, but she still had a friendly relationship with her soon-to-be ex-husband. He agreed to sign the I-751 form and even came to the client’s final green card interview to confirm to the USCIS officer that they had married for love, but, unfortunately, the marriage didn’t work out.

What happens after filing the I-751?

After the I-751 is filed, USCIS will send you a notice that your petition has been received, and your case is being worked on. Don’t lose that receipt notice! It serves as your 18-month extension of your conditional green card, enabling you to continue to work, travel internationally or possibly support your purchase of a house.

USCIS will schedule you for fingerprinting and possibly an in-person interview. Be aware that USCIS may send you a request for evidence (RFE) before and/or after the interview. Your immigration lawyer will help you respond to any RFEs and can accompany you to the interview.

If you want to apply for U.S. citizenship, you will have to wait five years before being eligible to apply, even though you received a marriage-based green card, if you’re no longer married to a U.S. citizen. (To be eligible for U.S. citizenship after three years under a green card through marriage, you must remain married until citizenship is awarded.) Still, you can count the two years you spent under a conditional green card toward the five years of permanent residence needed to apply for citizenship.

All the best to you in your final steps toward a 10-year green card!

–Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!