Marriage green cards are issued on the basis of a successful marriage, and being able to prove this marriage to a USCIS officer during the green card interview (in which both partners must attend). Things tend to get a little tricky, however, once that marriage is ending, or if a couple decides to file for a divorce, even after the spouse receives their green card. Simply put, the conditionalities around receiving a green card depend on the legitimacy of that certificate, and when it becomes null, problems may arise.

This is because of two main reasons:

1.     Marriage green cards, unlike a 10-year green card, are usually issued as 2-year conditional green cards. Thus couples need to file more paperwork with the USCIS at the end of that 2-year period ensuring that they are still in a committed marriage so that the spouse in question can get a permanent green card instead.

2.     Changes in your N-400 application and the eligibility you have to file under.

Conditionalities and green cards

Let’s discuss the first reason more in-depth, and then we will take a look at the issues with filing your N-400, Application for Naturalization.

In a previous posting, we discussed the I-751, Petition to Remove Conditions on Residence, and stated that this form should be filed jointly according to USCIS protocol. In their instruction manual on I-751, they state that “if you are still married, then file Form I-751 jointly with your spouse through whom you obtained conditional status.”

However, the instructions also mention that you should not file jointly if: 

  • Your spouse has since passed away
  • The marriage was entered in good faith but later terminated due to a divorce or an annulment
  • The marriage was entered in good faith, but through the marriage, you were subjected to extreme cruelty by your petitioning spouse
  • The termination of green card status and removal from the U.S. would result in extreme hardship elsewhere

In the case of a divorce, an applicant still needs to file an I-751, but they need to attach a separate waiver stating the condition of their divorce. This is a written waiver that applicants are encouraged to seek the counsel of an attorney to write (if they can afford to). In such a letter, the petitioning applicant needs to make clear the following:

1.     That the marriage was originally “bona fide” or genuine during the original green card application process.

2.     That it was not in any way a business transaction.

3.     Providing evidence of marriage therapy appointment receipts has been mentioned as one way to convince USCIS of such legitimacy.

Divorce and your N-400 Application

According to Section 316(a) of the Immigration and Nationality Act (INA)—an LPR must either have continuous residence in the United States for 3 years and be married or have a continuous presence inside the United States for a period of 5 years given that they are not married, before applying for naturalization.

Thus when going through a divorce, the spouse in question who will go on to apply for citizenship must be aware that once the divorce is finalized, they will need to file their N-400 after five years, given that the original three-year agreement has also been terminated.

If divorced individuals need to change their name back to their maiden name, they also need to make sure that when they file their N-400 paperwork, their case is consistent. The USCIS will most likely ask for additional evidence as to the nature of the divorce, so have that paperwork ready as well.

Marriage Green CardN-400USCISI-751