Can a Divorce affect Citizenship?

by: Sonja Bradley

If you are thinking about divorce and either of you or your spouse are in the U.S. on a visa or green card, it is important to know how a divorce could impact your status and citizenship.

Divorce can have different consequences depending on the immigration status of the parties involved. For example, if you are married and in the US with green card status, a divorce will generally not affect your legal immigrant status, but if you have a conditional green card, you have to go through a process to prove your marriage was legitimate.

Divorce is never an easy process, but if you are not a U.S. citizen, it is important to know how a divorce could affect your immigration status. In this blog post, we will explore how divorces can impact citizenship and what steps you need to take to protect your status. We will also provide some resources for those who need help navigating these difficult waters.

Picture of a law book on immigration and citizenship.

Will divorce affect my citizenship?

If you are married to a U.S. citizen, you can apply for citizenship after three years instead of the normal five years. But if you get divorced before gaining citizenship, you will typically have to wait the standard five years.

If your marriage was real, you will be okay when applying for citizenship because the government will see that your divorce was simply a bump in the road, not an indication that your marriage was fake from the beginning.

But if your marriage wasn’t real, then you’re just using divorce as a way to get what you want, and that’s not fair to the people who have actually gone through the process of obtaining citizenship the correct way.

The government does investigate marriages to determine if they are legit. So please, think long and hard about whether or not your marriage was actually real before you apply for citizenship.

If the divorce is finalized before the green card is issued, the immigrant cannot receive a green card based on their marriage to a US citizen. This is because the divorce ended the
conditional permanent residency that was provided based on being the spouse of a US resident.

Therefore, the spouse would not receive a green card and would not be able to become a US citizen. This rule exists primarily to prevent individuals from entering into fictitious marriages and divorcing while a green card application is pending.

Immigrants who file for divorce before the waiting expires will not be able to obtain a
green card. However, the spouse may file a waiver application to prove that their intentions were honest when they entered into the marriage.

Picture of an immigrant

What happens if I get a divorce during the immigration process?

When a couple has been married for less than two (2) years at the moment of the green
card interview with U.S. Citizenship and Immigration Services (USCIS), the immigrant will
receive a “conditional green card.”

This green card is valid for two (2) years. If you’ve been married more than two years and then filed, then you’re going to get a permanent green card. The distinction is critical in divorce cases, so if you only have your conditional green card and then get divorced, you have to prove in court documents that you were loyal to your spouse. 

But if you get divorced before you get your conditional green card, then you will be
unable to qualify for a green card. And so the filing itself will be canceled, and you will lose your benefits of getting a green card in the first place.

Can I get citizenship after a divorce?

If you have a permanent residency and you are divorced, then it does not matter at that point because, by that time, you already have a permanent green card. If you are divorced, then by the time you apply for citizenship, the only thing that you will not be able to apply for is citizenship based on a three-year marriage to a US citizen.

You have to wait five years. So, to summarize this, if you are married to a US citizen, and you are in the process of your green card application, and in the process of a divorce or you get divorced, and that divorce becomes final, the interview will not occur.

It’s going to be very complicated because, at that point, immigration would determine that you are not together anymore before even getting the conditional green card, and most likely, that case would fail.

Now, there are exceptions, even if you are in the early stages of filing the adjustment of status and not getting to the interview and you are being, for example, abused. So, despite the divorce, you can still get a green card if you go through an abusive process with an abusive spouse.

How long after receiving citizenship can you divorce?

There is no specific time duration for divorce. However, if you have a conditional
green card, it’s better not to divorce your spouse.
But if you do divorce, you have to prove through documents in court that you were loyal to your spouse.

On the other hand, if you are a 10-year green card holder, the divorce will not affect your citizenship because green card holders are usually unaffected by divorce.

Applicants who are already lawful permanent residents with a 10-year green card may file another application or petition with U.S Citizenship and immigration services. 

Is it hard to divorce an immigrant?

It is not that easy. If you are a US citizen who previously sponsored your immigrant
you and your spouse agreed to cover all of his or her expenditures, you can divorce your spouse, and if there are any expenses for the spouse’s healthcare or other expenditures, the government will order you to pay them or may ask you to pay at any moment.

Similarly, if you divorce your US citizen spouse, it may result in deportation or it may affect your immigration proceedings. Furthermore, you won’t be able to get legal status if you’re an illegal immigrant married to a U.S Citizen from another country.

Under US law, children born to illegal immigrants must be deported with their parents and are forbidden from re-entering the country until they turn 21.

Picture of a couple meeting with a divorce attorney.

What happens if I divorce my immigrant spouse?

Divorce does not affect an immigration status if he or she is already a permanent resident when the marriage ends. However, if and when the person applies for naturalized U.S. citizenship, the authorities may re-examine whether the marriage was legitimate in the first place or not.

Especially if you are on conditional resident status, the court may check that, before the
marriage, your intentions were real. Written statements from people who knew about your relationship or marriage and where you have been living together, such as evidence of financial commingling, can be used to show that your intentions of marriage were real.

So, if you intend to apply for citizenship, you should be prepared to go into it with evidence that the marriage is genuine.

How long do you have to be married to receive a ten-year card?

To change your spouse’s status to conditional residency, you must wait at least two years.
If a couple is still married, the immigrant may file Form I-751 (Petition to Remove Conditions of Residence) with USCIS to remove the conditions of the two (2) year conditional green card, to which the immigrant would receive a ten (10) year card. It is necessary to file the petition within the final 90 days before the green card expires.

Does divorce affect your ten-year card?

If a couple is already lawful permanent residents with a 10-year green card, a divorce is
normally unaffected. You have nothing to worry about because there is usually no reason for USCIS to assess your petition following a divorce, so don’t be concerned.

However, if the couple divorces before the two (2) year green card expires, the immigrant
may not petition to receive a ten (10) year green card unless it was for the following: death; adultery; or abuse which includes physical, mental, sexual, or financial.

If you have additional questions about divorce, contact our office; we are an experienced family law firm with offices in Hammond and Livingston, Louisiana.

Disclaimer: The Law Offices of Sonja Bradley provided this information as a courtesy, and it is not intended as legal advice.

Sonja Bradley J.D., Sonja received her undergraduate degree from Southeastern Louisiana University and a Juris Doctorate from Loyola University School of Law. Sonja is a member of the Louisiana State Bar Association and the 21st JDC Bar Association. She has 21 years of legal experience.