Divorce is challenging enough, but what about for those who are not U.S. citizens? With so much conversation centered around immigration today, it’s no wonder that many non-citizens are concerned about being able to remain in the United States after a divorce. Florida’s large immigrant population raises a common concern: Can you stay in the United States if you divorce your U.S. citizen spouse?
At Melone Hatley, P.C. our team of skilled Tampa, Florida family law attorneys are here to discuss and protect your rights, whether you are pursuing a divorce or merely considering one. Let’s break down how divorce could possibly affect your immigration status and what strategies you may want to consider as a result.
How Your Divorce Could Affect Your Immigration Status
As a non-U.S. citizen, you may have chosen to gain legal residency in the United States through marriage to a U.S. citizen or permanent resident (green card holder). But what happens to your legal residency if that marriage ends in divorce? That all depends on where you are in the process of gaining your own permanent resident status.
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Marriage Fraud and Proving Your Marriage is a Bona Fide Marriage
If you are a non-U.S. citizen who has married a U.S. citizen or a lawful permanent resident (LPR), you can apply for a marriage-based green card granting you lawful permanent residency in the United States.
However, U.S. immigration law requires proof that your marriage is bona fide (genuine) to prevent immigration fraud, or cases where individuals marry solely to obtain a green card or other immigration benefits. Consequently, the U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) closely scrutinize marriage-based green card applications to ensure the marriage and relationship are authentic. To ensure the marriage was entered into for legitimate reasons instead of just for immigration benefits, USCIS officers look for proof of a shared life and financial interdependence at the initial interview and then again two years later.
In other words, the U.S. Citizenship and Immigration Services take great care to ensure that marriage-based green cards are only issued to those who have become married for genuine reasons.
Obtaining a Green Card Through Marriage
The process of obtaining a green card through marriage will depend on whether your spouse is a U.S. citizen or a green card holder and whether you, as the foreign spouse, are located inside or outside the U.S.
- As a non-U.S. citizen who marries a U.S. citizen, you are considered an “immediate relative” under U.S. immigration law. This means you receive priority, will not be subject to visa limits, and can stay in the U.S. while your green card application is being processed. The process generally takes 10 to 18 months, depending on the service center and the complexity of your case.
- As a non-U.S. citizen who marries a lawful permanent resident (green card holder), you are placed in the F2A “family preference” category. Unlike the immediate relative category, as the spouse of a green card holder, you must wait for a visa to become available. Depending on visa backlogs, this can take anywhere from several months to a few years.
What Happens if You and Your Spouse Divorce Before Your Green Card Is Approved?
Divorcing before a green card is approved will significantly impact your immigration status as a non-U.S. citizen.
If Your Petition Has Not Yet Been Approved
If your divorce occurs after the marriage-based petition has been filed (Form I-130), but no green card has been issued yet, the petition is automatically denied, and you will not be able to continue the process. This means you lose your eligibility for a green card.
If you have no other lawful immigration status, you may need to leave the United States unless you qualify for a different type of visa or a humanitarian relief program such as asylum or the Violence Against Women Act.
If the Green Card Interview Has Not Yet Happened
If the I-130 petition has been approved, but the USCIS interview has not yet taken place, you still have no opportunity to prove a bone fide marriage. Consequently, if your marriage ended in divorce before the official interview, even if the petition was approved, you will no longer qualify for a marriage-based green card, and the process will be terminated.
Conditional Green Card (For Marriages Under Two Years)
If your marriage is less than two years old when your green card is approved, you will receive a conditional green card, which is only valid for two years. Because shorter marriages are at a higher risk of fraud, a conditional green card ensures your marriage is for valid reasons instead of just immigration purposes.
To obtain a permanent (10-year) green card, you will be reviewed once again after you file Form I-751 (Petition to Remove Conditions on Residence) before your two-year period expires. Typically, this would be done jointly by both spouses, proving once again that the marriage is genuine and that you and your spouse are still living together as a married couple. But what happens if you have divorced before those two years are up?
While divorcing during that conditional period can complicate the process, it doesn’t automatically result in deportation. You can apply for a waiver of the joint filing requirement by proving one of the following:
- You can state your marriage was entered into in good faith but ended in divorce. You can prove good faith by submitting joint bank accounts, lease agreements or mortgage documents showing cohabitation, joint utility bills, insurance policies showing each other as beneficiaries, photos and communications, or affidavits from friends or professionals.
- You can state you would suffer extreme hardship if removed from the United States. This “hardship” must be more than just financial or emotional difficulties. For instance, you may have a medical condition that cannot be treated in your home country, you may face danger in your home country because of persecution or political unrest, or your dependent U.S. citizen child would suffer if forced to relocate.
- If you were subjected to physical, emotional, or psychological abuse by your U.S. citizen or permanent resident spouse, you can apply for a green card under the Violence Against Women Act (VAWA).
Permanent Green Card Holders
If you have already moved past the conditional green card process and you have a permanent green card, this grants you lawful permanent resident (LPR) status, allowing you to live and work in the United States indefinitely. If you have a permanent green card, a divorce will not directly affect your immigration status.
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What Are Your Options If You Can’t Obtain a Marriage-Based Green Card Because of a Divorce?
If you become ineligible for a marriage-based green card because of a divorce, you may still have other paths to remain in the United States.
Employment-Based Green Card
If you have a job offer from a U.S. employer, you may be eligible for an H-1B visa or other work-based visa that can lead to a green card. Furthermore, you may apply for an employment-based green card if you fall into EB-1 (individuals with extraordinary abilities, outstanding professors and researchers, or multinational executives and managers), EB-2 (individuals with advanced degrees and exceptional abilities), or EB-3 (skilled workers, professionals, and other workers) employment-based categories.
Family-Based Green Card (Through a Parent or Child)
If you have a U.S. citizen child (21 or older) or a U.S. citizen parent, they can sponsor you for a family-based green card. Siblings can also sponsor you, but the wait can be significant (10 or more years).
Asylum
If you face persecution in your home country due to race, religion, nationality, political opinions, or social group, you may apply for asylum within one year of entering the United States. Once you are granted asylum, you can apply for a green card after one year.
Student Visa
If you have been accepted into a U.S. university, you may qualify for an F-1 visa, which allows you to remain legally in the United States. This may eventually lead to a work visa and then a green card.
Investor Visa
If you have significant resources, you may qualify for an investor visa. Depending on the visa, this requires making a significant financial investment in a U.S. business and, in the case of an EB-5 visa, creating a specific number of jobs as a result.
U Visa
If you were the victim of certain crimes, such as domestic violence, trafficking, or assault, and cooperated with law enforcement, you may be eligible for a U visa, which can lead to a green card.
Temporary Protected Status (TPS) or Deferred Action (DACA)
If you are from a country affected by war, natural disaster, or humanitarian crisis, you may qualify for Temporary Protected Status. Furthermore, as of March 2025, DACA (Deferred Action for Childhood Arrivals) still protects some individuals who entered the U.S. illegally as children. However, this program’s future is uncertain because of legal challenges and policy debates.
Cancellation of Removal
If you are undocumented but have been in the United States for over 10 years, you may qualify for Cancellation of Removal, provided you are already in the deportation process and deportation would cause extreme hardship to a U.S. citizen family member.
Protecting You in Cases of Domestic Violence (VAWA Petition)
If you are a non-U.S. citizen who has experienced domestic abuse from your U.S. citizen or lawful permanent resident spouse, you may be eligible to self-petition for a green card under the Violence Against Women Act (VAWA).
VAWA provides protection for non-citizen spouses, children, and parents of abusive U.S. citizens or green card holders and allows victims to self-petition for lawful status without relying on the abuser for sponsorship. You may qualify for VAWA if
- You are married to, divorced from, or widowed by a U.S. citizen or lawful permanent resident.
- You have suffered physical abuse, emotional abuse, psychological abuse, financial control, or threats.
- You can prove your marriage was entered into in good faith.
- You have good moral character (e.g., no serious criminal history).
- You file the petition (Form I-360) within two years of divorce (if you are divorced).
Despite its name, VAWA is not only for women. Men, LGBTQ+ individuals, and parents/children of abusive U.S. citizens or LPRs can also apply. A Tampa divorce attorney can play a critical role in protecting you from an abusive spouse during your divorce process by ensuring your VAWA petition is strong enough to get approved.
The bottom line is if your divorce makes you ineligible for a marriage-based green card, your options will depend on
- Whether you already had conditional residency (your 2-year green card)
- If you can prove your marriage was genuine
- If you qualify for another visa category
- If you were subject to domestic violence by your U.S. citizen or LPR spouse.
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How Can a Divorce Attorney Help You Navigate Immigration Concerns?
If you are a non-U.S. citizen going through a divorce, your immigration status can be directly affected, especially if your residency in the United States is tied to your marriage. A Tampa divorce attorney can help protect your rights and coordinate with an immigration attorney to ensure you remain in compliance with immigration laws.
An experienced divorce attorney can
- Help assess your immigration status and risks after a divorce
- Help you file to remove your residency conditions before your conditional green card expires
- Help you gather strong evidence that your marriage was bona fide
- Help you file your abuse waiver if you suffered abuse by your spouse
- Help protect you if your spouse uses your immigration status as a weapon
- Help you retain custody and not lose your parental rights due to your immigration status
- Help ensure your spouse provides financial support (spousal support and/or child support
- Help you explore alternative options if your divorce makes you ineligible for a marriage-based green card.
Florida has a large and diverse immigrant population, and for non-U.S. citizens, divorce can have serious immigration consequences, including the potential loss of lawful status.
Whether you are in the process of applying for a marriage-based green card, holding a conditional green card, or have your permanent green card, it is critical to understand how ending your marriage could impact your future in the United States. If you are facing a divorce and concerned about its effect on your immigration status, the experienced Tampa divorce attorneys at Melone Hatley, P.C. will advise you of your options and protect your rights. Call us at 813-400-1602 to schedule a free consultation with one of our Client Services Coordinators today.
Schedule a call with one of our client services coordinators today.
