Dear Sophie: Can I still get a green card through marriage if I’m divorcing?

Sophie Alcorn Contributor

Sophie Alcorn is the founder of Alcorn Immigration Law in Silicon Valley and 2019 Global Law Experts Awards’ “Law Firm of the Year in California for Entrepreneur Immigration Services.” She connects people with the businesses and opportunities that expand their lives.

More posts by this contributor

• Dear Sophie: Tips on EB-1A and EB-2 NIW?
• Dear Sophie: Can I hire an engineer whose green card is being sponsored by another company?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I received a conditional green card after my wife and I got married in 2019. Recently, we have made the difficult decision to end our marriage. I want to continue living and working in the United States.

Is it still possible for me to complete my green card based on my marriage through the I-751 process or do I need to do something else, like ask my employer to sponsor me for a work visa?

— Better to Have Loved and Lost

Dear Better,

I’m sorry to hear your marriage didn’t work out. Rest assured, you can still proceed with getting a full-fledged green card even though you and your wife are divorcing. Listen to my recent podcast with Anita Koumriqian, my law partner, in which we discuss the removal of conditions on permanent residence for people who got two-year green cards through marriage.

As you know, since you were married for less than two years when you applied for your green card through marriage, you were issued a conditional green card that is only valid for two years rather than a 10-year green card. The purpose of the I-751 is to show that the couple entered into a genuine, good faith marriage. Usually, couples must file an I-751 petition together. However, an individual may file a petition without a spouse if any of the following apply:

• If the marriage ended through annulment or divorce.
• If the U.S. citizen spouse died.
• If the conditional resident (and/or children) was battered or subjected to extreme cruelty.

If your divorce is not yet finalized and you don’t have a family law attorney yet, I do recommend that you work with a family law attorney, who is necessary to help streamline the process. I also recommend consulting an immigration attorney as soon as possible to prepare the I-751 filing since it can get tricky for an individual in divorce proceedings. Both need to work together and in parallel to ensure that everything goes smoothly for you with U.S. Citizenship and Immigration Services.

Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)

When to file to remove conditions on permanent residence

The I-751 should be filed within the 90-day period before your conditional green card is set to expire. I recommend filing as soon as you can within that window. Keep in mind that, if you file your I-751 petition too early, it may be returned to you. And if you file it after your conditional green card expires, you not only face having to leave the U.S., but USCIS could also deny your petition if you fail to provide a compelling reason. If you are in this situation, definitely let your immigration attorney know.

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