The answer to this depends on how long you have been married at the time your green card application is approved. Marriage to a U.S. citizen generally allows for what is called conditional residency when the couple has been married less than 2 years at the time of approval. However, if the couple have been married for more than 2 years at the time of approval, he or she is granted a green card valid for 10 years.
Knowing the difference between the two kinds of green card is important. The 10-year green card generally does not require any subsequent applications because it is a “permanent” green card.
However, a noncitizen spouse can only be granted a “conditional resident” green card that is valid for 2 years if he or she was married for less than 2 years at the time the application was approved. The noncitizen “conditional resident” spouse is subjected to the requirement that after 1 year and 9 months and before the 2 years has passed, the foreign national along with his or her spouse, must file a joint petition with the United States Citizenship and Immigration Services (USCIS) to remove the conditions to his or her residency. Generally, if this petition is not filed, the noncitizen spouse will have their conditional residence terminated and he or she will be placed into removal/deportation proceedings in front of the Immigration Court.
If at that time of filing the I-751 petition to remove his or her conditional, the couple is no longer married or living together, the foreign national can file for a waiver generally stating that the marriage was entered into good faith. Other grounds to waive the joint petition requirement include the death of the U.S. citizen spouse, having been battered or subject to extreme cruelty by the U.S. citizen spouse or that being removed will result in extreme hardship.
In the case of a divorce, USCIS requires that the couple have a final order of dissolution within a certain period of time. To say that we have separated and have filed for divorce is generally not enough.
In the event the joint petition or waiver application are not approved, the noncitizen spouse will also be placed into removal/deportation proceedings before the Immigration Court.
If the joint petition or waiver application is approved, the noncitizen spouse then becomes a permanent resident.
Learn more about the immigration services provided by Philip Levin & Associates.
