Divorce is tough under any circumstances, but when your right to live in the United States depends on your marriage, it quickly becomes more than just a personal crisis.

For non-US nationals, the end of a relationship can mean the end of lawful status, the threat of removal and a scramble to salvage immigration plans. The rules aren’t always clear, and what happens next will depend on timing, paperwork and how the relationship ended.

This guide sets out what you need to know if you’re facing divorce in the US as a foreign national, from conditional green cards and waivers to naturalisation delays and the risk of losing more than just a marriage.

 

US rules on immigration & divorce

 

If you are a non-US national and your right to live in the United States is based on your marriage to a US citizen or permanent resident, separating from your spouse may carry significant immigration consequences. Your ability to stay lawfully in the US, or continue your immigration journey, will often depend on the timing of your separation or divorce, the stage of your green card process and the nature of your relationship at the time your status was granted.

Divorce rules also differ between different US states and you are advised to take professional guidance on which rules apply for your circumstances as USCIS will interpret state law when determining the legal staus of a marriage.

 

Separation vs Divorce: Immigration Distinctions

 

In US immigration law, the distinction between legal separation and divorce matters. A divorce means the marriage has been legally ended by a court. A separation, however, means the marriage is still legally in force, even if the spouses are no longer living together. Some states recognise legal separation through a court order, while others allow informal separation without court involvement.

USCIS will follow state law when deciding if a marriage has legally ended, which means the specific rules will vary depending on where you live. Legal advice from a family law attorney in your state is strongly recommended if you are unsure of your status.

The distinction between separation and divorce can impact both your current status and future immigration options.

If you’re legally separated but not divorced, you may still be eligible to file joint applications (e.g. to remove conditions on a green card) or continue to qualify as a spouse for certain benefits, depending on your relationship and the timing.

Once you are divorced, you are no longer classed as a spouse under immigration law. If your visa or green card was based solely on your marriage, this could lead to status issues unless you qualify for an exception or hold independent status.

 

Conditional Green Card and divorce (marriage under two years)

 

If you were married for less than two years at the time your green card was approved, you would have received conditional permanent resident status, valid for two years. To become a full permanent resident, you must file Form I-751 (Petition to Remove Conditions on Residence) in the 90 days before your conditional green card expires.

Under normal circumstances, both spouses file the I-751 jointly and include evidence that the marriage is genuine and ongoing. This process assumes that the couple are still married and living together.

 

Divorce before two years

 

If you divorce during the two-year conditional period, you cannot file a joint petition, but you may still apply for removal of conditions by requesting a waiver of the joint filing requirement.

To succeed, you must show strong evidence to support one of the following grounds:

 

Good faith marriage that ended in divorce or annulment

You must prove the marriage was genuine and not entered into for immigration purposes. Examples of acceptable evidence include joint finances, shared property, cohabitation, children, and communications showing a bona fide relationship.

 

Abuse or extreme cruelty

If your US spouse subjected you to physical, emotional or psychological abuse, you may apply for a waiver on this basis even if the marriage has not ended in divorce.

 

Extreme hardship

You may qualify if returning to your home country would cause you exceptional hardship, even if the marriage ended for other reasons.

 

If your waiver is approved, the conditions on your residence will be removed and you will receive a 10-year green card.

However, if USCIS believes the marriage was fraudulent, or that the divorce occurred due to serious misconduct on your part, such as abandonment or adultery, your I-751 petition is likely to be denied, which could result in removal proceedings.

 

Divorce after two years of marriage

 

If you were married for more than two years at the time your green card was granted, you would have received full permanent resident status with a 10-year green card.

In this case, a divorce does not automatically affect your status. You can usually renew your green card and remain in the US without issue, unless there is evidence that your marriage was fraudulent when the green card was originally granted.

 

Impact on dependents and sponsored relatives

 

A divorce may also affect others connected to your immigration status. For example, derivative dependants, such as children with status tied to your marriage-based visa, could lose their eligibility to remain in the US, or family members you have petitioned for based on your marital status or green card may no longer qualify.

Each case depends on the specific visa category and stage of the immigration process. It’s important to seek professional guidance as early as possible to identify options and avoid status violations.

 

Impact on naturalization timeline

 

If you intend to apply for US citizenship, divorce may affect your eligibility timeline.

If you remain married to a US citizen, you can typically apply for naturalisation after 3 years of permanent residency. If you divorce, you must wait until you’ve had your green card for 5 years before applying for naturalization.

In both scenarios, you must still meet all other eligibility criteria, including continuous residence, physical presence and good moral character.

 

Need assistance?

 

Divorce can be difficult in any context, but the immigration consequences make it even more important to seek timely legal advice. While divorce does not necessarily mean you must leave the US, it may trigger the need for a waiver or change in your immigration strategy.

Your options will depend on the facts of your case; how long you’ve been married, the type of status you hold and your future immigration goals. Contact our attorneys to understand your rights and secure your position in the United States.

 

Immigration divorce FAQs

 

Will I lose my US visa or green card if I get divorced?

It depends on the type of immigration status you hold. If you have a conditional green card and divorce before the two-year period ends, you will need to apply for a waiver to remain in the US. If you already have a 10-year green card, divorce generally does not affect your lawful permanent resident status.

 

Can I stay in the US after divorcing my American spouse?

Possibly. If you can demonstrate that the marriage was genuine and not solely for immigration purposes, you may still qualify to remain in the US. This often involves filing Form I-751 with a waiver if you were granted conditional residency.

 

What is a conditional green card?

A conditional green card is issued to foreign spouses who have been married for less than two years at the time their permanent residency is granted. It is valid for two years and must be converted to full permanent residency by filing a joint petition or applying for a waiver if divorced.

 

Can I still apply for US citizenship after divorce?

Yes, but your timeline may change. If you divorce a US citizen before applying, you will need to wait five years from the date you received your green card, instead of the three-year residency requirement that applies to spouses of US citizens.

 

What if my spouse refuses to sign the joint petition to remove conditions?

You can still file Form I-751 on your own if you qualify for a waiver. You’ll need to show the marriage was genuine and ended through no fault of your own, or that you suffered abuse or would face extreme hardship if deported.

 

Does legal separation count as divorce for immigration purposes?

No. A legal separation does not end the marriage. USCIS considers a marriage legally ended only when there is a final divorce decree or annulment. However, separation may still impact eligibility for future immigration benefits.

 

Can I sponsor relatives if I divorce my US spouse?

If your immigration status was based on your marriage and it ends before you become a permanent resident, you may lose the ability to sponsor others. If you already hold a green card independently, your ability to sponsor relatives may remain unaffected.

 

What happens to my children’s immigration status if I divorce?

It depends on their individual immigration pathway. If their status is derivative of yours or your spouse’s, the impact will vary. You should take advice to determine if additional steps are needed to protect their legal stay in the US.

 

Glossary

 

Term	Definition
Green Card	The informal term for lawful permanent resident status in the United States, allowing a person to live and work in the country indefinitely.
Conditional Green Card	A two-year residency status granted to foreign spouses of US citizens if the couple has been married for less than two years at the time of approval.
Form I-751	The petition used to remove conditions on a two-year green card. Normally filed jointly by both spouses, but can be filed individually with a waiver after divorce or in cases of abuse or hardship.
Waiver	A request to excuse the requirement to file a petition jointly with a US spouse, usually on the basis of divorce, abuse or extreme hardship.
USCIS	United States Citizenship and Immigration Services – the federal agency responsible for handling immigration and naturalisation applications.
Naturalisation	The legal process by which a non-citizen becomes a US citizen after meeting certain residency and eligibility requirements.
Derivative Status	An immigration status that is granted to a family member (such as a child or spouse) based on their relationship to the primary applicant or visa holder.
Legal Separation	A court-recognised arrangement in which spouses live apart but remain legally married. This does not terminate the marriage in the eyes of immigration law.
Divorce Decree	The official court document that legally ends a marriage. USCIS requires a final divorce decree to recognise that a marriage has ended.
Good Faith Marriage	A genuine marital relationship entered into for reasons other than immigration benefits. Proving a good faith marriage is essential in many spousal immigration cases.
Extreme Hardship	A standard used in US immigration law to determine if a person would face unusually severe difficulties if required to leave the United States.