How to Protect Your Immigration Status During a Divorce or Separation
Wondering how divorce or separation could impact your immigration status? Learn how your visa, green card, or citizenship application may be affected and what steps you can take to stay legally in the U.S.
Can divorce or separation affect your immigration status?
If you have a conditional green card or you are in the U.S. on a dependent visa, a divorce or separation may impact your immigration status.
Your immigration status, how and when you received your visa, and your spouse’s status all play a role in determining what happens.
In this post, we will:
- Compare divorce and separation and why the difference matters for immigration cases
- Discuss the impact divorce can have on your immigration status
- Cover how to remove conditions on your green card after divorce
- Suggest steps you can take to protect your immigration status
- Key takeaways
If you need legal advice about divorce and immigration, it’s best to consult a trusted immigration attorney.
At SimpleCitizen we provide access to tools that help you make sense of the immigration process. We can also help you connect with an independent network of immigration attorneys for legal guidance.
Divorce vs. separation: what’s the difference for immigration?
A divorce legally ends a marriage, while a separation allows a couple to live apart while remaining legally married.
Why does this matter?
- USCIS will look at your state’s laws to determine whether your marriage is legally over.
- Some states recognize legal separation, while others do not.
- Your ability to retain your immigration benefits like a visa and/or work authorization and your eligibility for a green card or citizenship may depend on whether you are separated or divorced.
Tip: If you are unsure how your state handles legal separation vs divorce, consult a family law attorney.
Related blog: Learn more about the difference between divorce and separation.
How your immigration status may be affected by divorce
Your immigration status plays a big role in whether a divorce will impact your ability to stay in the U.S. Below are the most common situations:
1. Permanent residency (10-year green card holders)
Who this applies to: You are a Lawful Permanent Resident (LPR) with a 10-year green card.
Will divorce affect your immigration status? No. A divorce does not affect your green card status once you have been granted permanent residency.
But here is what does change:
- You must have had your green card for at least 5 years instead of 3 years to apply for U.S. citizenship.
- You may need to prove that your marriage was legitimate when you apply for citizenship.
- Documents like joint bank statements, mortgage agreements and leases, and tax filings can all be used to prove your marriage was real.
If USCIS has reason to believe your marriage was fraudulent, they could deny your citizenship application and even begin removal proceedings. So, it is important to have documents like those listed above to help prove your marriage was legitimate if you apply for citizenship after you get divorced.
2. Conditional green card holders (2-year green card)
Who this applies to: You have a 2-year conditional green card based on marriage to a U.S. citizen or permanent resident.
Will divorce affect your immigration status? Yes. A divorce can put your status at risk because:
- You must file Form I-751, Petition to Remove Conditions to get a permanent (10-year) green card.
- Normally, both spouses file jointly to prove the marriage is real.
- If you are divorced, you must file a waiver and prove your marriage was entered into in good faith.
How to remove conditions if you’re divorced:
- File Form I-751 requesting a waiver of the joint filing requirement.
- Submit a finalized copy of your divorce decree signed by a judge.
- Submit evidence like birth certificates of children you co-parent, joint mortgages or leases, bank accounts, tax returns, and photos of family events and trips to prove your relationship was real.
Keep in mind that If USCIS is suspicious, they may interview you and/or request more documents.
Citizenship timeline change:
- If you remain married to a U.S. citizen you can apply for citizenship after you have been married for 3 years.
- If you divorce, you must wait 5 years.
3. Dependent visa holders (H-4, L-2, F-2, etc.)
Who this applies to: You have a visa based on your spouse’s work or study visa (e.g., H-4 for H-1B holders).
Will divorce affect your immigration status? Yes. If you’re on a dependent visa, you may lose your legal status once the divorce is finalized.
H-1B Example:
- If your spouse has an H-1B visa and you have an H-4 visa, your H-4 status ends with the marriage.
- If your work permit (Employment Authorization Document - EAD) is tied to your dependent visa, it will also probably be revoked.
Key takeaways
✅ Divorce doesn’t always mean losing your status, but can impact it.
✅ Citizenship timelines can change after permanent residents divorce.
✅ Conditional green card holders must file a waiver and prove their marriage was real.
✅ Dependent visa holders may lose their status and need a new visa.
✅ Consulting an immigration lawyer can help you understand your best options.
Final thoughts
Divorce can make your immigration situation more complex, but knowing how your status might change before you get divorced and the options you have can help you plan ahead. If you are unsure about your next steps, consider speaking with an experienced immigration attorney to explore your options.
Find help navigating complex situations that involve immigration and divorce.
