Divorce and Conditional Residence

Many immigrants lose their green cards because they forget to petition USCIS to remove conditions on their residence.  If you married a U.S. citizen and, at the time you got your green card, your marriage was less than 2 years old, you are given a conditional green card.  What this means is that there is an additional step you must take to convince USCIS that the marriage is in good faith before you get a 10-year green card.  USCIS puts a “testing period” on marriages between U.S. citizens and foreign nationals that are less than 2 years old to make sure that the spouses did not enter into the marriage just for the immigration benefit.  Does this 2-year rule prevent foreign nationals from marrying U.S. citizens just to get a green card?  No.  While both foreign nationals and U.S. citizens do get away with entering into a marriage that is not real, USCIS tries to prevent this from happening the best way possible.

A conditional green card based on marriage to a U.S. citizen is given for 2 years.  Within 90 days before your conditional green card expires, you and your US citizen spouse must file a petition with USCIS to remove conditions on your residence.  You must present evidence that you and your U.S. citizen spouse are still living together and that you share a life together.  After USCIS removes conditions on your residence, you receive a 10-year green card.  USCIS will put you in deportation proceedings if you do not file a timely petition to remove conditions absent a compelling reason.  What happens if you and your U.S. citizen spouse divorce during the 2-year conditional green card period?  If you are headed for divorce, your U.S. citizen spouse probably will not sign your petition to remove conditions.  You must return to your home country or explore options to remain in the U.S.   If you decide to remain in the U.S., you can file a petition to remove conditions on your own, without the participation of your U.S. citizen spouse. If this is your situation, I encourage you to consult with a San Jose divorce and immigration lawyer about your options.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer.  My goal is to provide experienced and caring representation in family law matters to every client.