Separating from a U.S. Citizen Partner

Immigrating to the US to join your US citizen partner is not an easy process. It involves completing lengthy forms, tracking down old documents, proving to the US government that your relationship is “genuine,” and waiting months for something to happen so that you can finally start your new life together.

After going through this process, the thought of doing anything that might jeopardize your legal status in the US is unthinkable. But what happens when you experience circumstances outside of your control? All marriages, regardless of location or nationality, face issues. It is normal for things and people to change. Just because your immigrant status in the US was obtained through your marriage to a US citizen, this does not mean that you must remain married if the relationship is not working. In most cases, you will not have to abandon your permanent resident status following a separation or divorce.

Let’s look at an example.

Anaya, an Indian citizen, and David, a US citizen, met while Anaya was studying at university in the US. Anaya was in the US on a student visa and had been living in New York for two years already when she and David began to date. Two years later and shortly after graduation, Anaya and David decided to get married. At this point, Anaya’s student visa was set to expire (following graduation) and so David and Anaya filed an Adjustment of Status application to adjust Anaya’s status from an F1 student visa to a marriage-based green card.

About a year after filing the Adjustment of Status application, Anaya and David attended an interview at USCIS where they presented evidence of how they met and proof that their relationship was “bonafide.” Anaya’s case was ultimately approved and USCIS issued her a 2-year “conditional green card.” Anaya’s permanent residence was conditional because she had been married for less than two years to her US citizen spouse. Because of the length of their marriage, USCIS would require an additional “check-in” after two years.

Throughout the year following Anaya’s green card approval, the two began to experience marital problems. David was working a lot and dynamics in their relationship began to shift. At this point, Anaya had lived in the US for nearly six years and had a community of friends and a job that she loved. She did not want to return to India and she knew that she would not be able to find a similar job in her industry back at home.

After much turmoil, David and Anaya decided to separate. Anaya moved in with a friend and they stopped contacting each other in order to work through the issues they were having. A few months later, David filed for divorce. Unfortunately, around this same time, Anaya’s conditional green card was about to expire. She needed to submit a new petition to USCIS in order to maintain her status, and the petition required evidence of her relationship with David.

After meeting with an immigration attorney, Anaya learned that she could still submit the required petition to remove conditions on her green card even though she and David were no longer together. Instead of filing this form jointly with her spouse, Anaya filed it independently and included a detailed sworn declaration recounting her relationship and how things ended (referred to as a waiver).

By proving that her marriage was entered into “in good faith” and that it came to an end for genuine reasons, Anaya was able to submit a valid I-751 petition with a divorce waiver. Her application included her sworn declaration, evidence of her relationship from when it was still intact, and additional supporting evidence of the problems that arose in the marriage. To make her case as strong as possible, she included sworn declarations from friends, co-workers, and family members who knew David and were able to attest to what caused the dissolution of the marriage.

After processing her petition for over a year and a half, USCIS issued an approval notice for Anaya’s I-751. Shortly after, she received her 10-year green card in the mail. Despite the unfortunate circumstances in her marriage, she was still able to maintain her status and did not have to abandon her job and life in the US. With this permanent resident card, her status was no longer bound to her relationship with David. Five years after her initial green card was issued, Anaya became eligible to apply to become a naturalized US citizen.


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