We assist binational same sex couple clients in obtaining permanent residence status (commonly referred to as “green cards”) based on their marriage to a United States citizen (or green card holder). But what if that marriage breaks down?
Divorce is an upsetting time for anyone who has to go through it. Life can become chaotic with the break-up’s impact on a couple’s finances, living arrangements, and, most importantly, children. When one partner is a foreign national, the divorce can create additional stress — in some cases, jeopardizing a green card holder’s permanent residence status.
The timing of a divorce is the primary issue when it comes to continued permanent residence status. After the USCIS issues a green card, the permanent residence status is “conditional” for two years. After our clients have been married for two years, we assist them in jointly petitioning the USCIS to remove this condition on their permanent residency status.
In the event that a divorce occurs after the condition has been removed from the permanent resident status, it will have little to no impact on the divorced foreign national spouse’s status. However, if he or she seeks to become a citizen, there would be an impact to his or her naturalization timeline. This is because the residency requirement is three years for naturalization applicants married to a U.S. citizen and five years for all other applicants.
On the other hand, if a couple is divorced within two years of the foreign national spouse’s obtaining a green card, the permanent resident status could be in jeopardy since a divorce generally terminates the conditional permanent residence status.
Even then, it is possible for some conditional green card holders to obtain a waiver of permanent residence termination. In order to have the condition removed from permanent residence status, the foreign national must submit a Form I-751 and request a waiver of the joint filing requirements. The green card holder would also want to provide a written explanation detailing the reasons for the divorce, as the USCIS grants I-751 waivers on a discretionary, case-by-case basis after considering the individual circumstances. Factors that might make the USCIS more likely to grant a waiver include whether (1) the marriage was entered into in good faith, (2) there was domestic abuse by the United States citizen spouse, (3) the foreign national spouse made a good faith attempt to make the marriage last, and (4) extreme hardship will occur to the foreign national if he or she is returned to his or her country of origin.
All of our clients struggle on some level when going through a divorce, but it can raise additional problems for a foreign national spouse.
At their law firm, Freed Marcroft LLC, attorneys Meghan Freed and Kristen Marcroft practice estate planning, family, real estate, litigation, business and non-profit planning, and LGBT immigration law in the historic Linden building on Main Street in Hartford, Connecticut. The attorneys’ practice is welcoming to all Connecticut individuals, families, and small businesses, especially including same sex couples and members of the lesbian, gay, bisexual, and transgender communities.
Meghan and Kristen also publish the Connecticut LGBT Law Project as a resource of legal news and commentary for the Connecticut lesbian, gay, bisexual and transgender community and their friends, families, and allies.