Dear Sophie: Possible to still get through I-751 and citizenship after divorce?

Question

Dear Sophie,

I work at a tech company, married a U.S. citizen two years ago and got a two-year green card. The relationship went south and I needed to leave to protect my daughter and me. I want to get divorced, but can we keep our green cards?

Will we be able to apply for U.S. citizenship?

— Hopeful in Hayward

Answer

Dear Hopeful,

Thank you for reaching out and sharing the story of your courage to do the right thing for yourself and your child. Good news — U.S. immigration laws have been designed to protect individuals who have been subject to abuse or extreme cruelty, which is not limited to physical harm but can also include emotional abuse. So, yes, you and your daughter can apply for a permanent green card even if you divorce your U.S.-citizen spouse. And yes, you can also apply for U.S. citizenship when you are eligible. My law partner, Anita Koumriqian, and I discuss the naturalization and citizenship process in more detail in this podcast.

You will need to file a petition (Form I-751) with U.S. Citizenship and Immigration Services (USCIS) to seek to have the conditions on your and your daughter’s two-year conditional green card removed. Usually, individuals with a conditional green card must file a petition within 90 days of when the conditional card is set to expire. However, an abused spouse or the parent of an abused child can file this petition at any time. I recommend consulting with an experienced immigration lawyer before filing this petition. You will be allowed to have your attorney go with you to the USCIS interview that will be required as part of this process.

Conditional green cards cannot be renewed. Individuals who fail to file a petition to remove the conditions run the risk of being deported. Once the conditions are removed, a green card will be valid for 10 years. This process can involve extensive documentation and the possibility of attending an in-person interview. One of the reasons that it’s important to speak to an immigration attorney about this process, especially in California, is because divorce can take at least six months and the timing of the legal processes can affect the outcome of your green card.

Down the road, when the time comes for citizenship, here are the requirements to apply for the naturalization process. You must have:

  • Held legal permanent residence (a green card) for at least five years or three years if married to a U.S. citizen. The months or years spent on a conditional green card count toward the waiting period for citizenship as long as the conditions are removed. You will be eligible to apply for citizenship once you reach your third total year of having a green card.
  • Lived in the U.S. at least three months before applying for citizenship and lived in the U.S. from the date your citizenship application has been submitted until your naturalization ceremony.
  • Been physically in the U.S. for at least 18 months out of the three years if you received a green card through marriage. Individuals who did not receive a green card through marriage must have been physically in the U.S. for at least 40 months out of the five years as a green card holder.
  • The ability to read, write and speak English.
  • Knowledge of U.S. history and government.
  • Shown good moral character and adhere to the U.S. Constitution and the laws of the U.S.

Once you meet all the requirements, you can apply for citizenship by filing an application for naturalization (Form N-400) along with supporting documents and evidence, and fees. It’s often a good idea to work with an immigration attorney in the naturalization process, especially if you are short on time to attend to all the details, or if you have any concerns about your immigration history.

After you submit your application, USCIS will send you a receipt notice and biometrics appointment notice. Lately, processing times for a naturalization application in the USCIS San Francisco and San Jose field offices have been running between 10 and 21 months.

You will be scheduled for an interview with a USCIS officer. Once again, you can bring a lawyer with you to this interview. Many of these interviews may be held over the phone due to COVID. You will be asked questions regarding the information you submitted with your citizenship application and you’ll be given English and civics tests. The immigration officer will typically let you know at the end of the interview whether they have any further questions, and sometimes you will find out during the interview whether your application for naturalization has been approved.

The officer will continue your case if you fail the English or civics test or additional evidence is needed. If you fail either test, you must return for another interview within 60 to 90 days and retake the test you failed. If you fail a second time, USCIS would deny your citizenship application.

You will receive a written notice from USCIS of its decision. If you’re approved, you will receive a Notice of Naturalization Oath Ceremony and a date and location for your oath ceremony. At the ceremony you will turn in the notice and your permanent resident (green) card and will take the oath of allegiance. You will receive a certificate of naturalization. Make sure to review it before leaving the ceremony and notify a USCIS official at the ceremony if any corrections need to be made to your certificate. Then, it’s time to celebrate! And make sure you vote in the November election!

Once you become a U.S. citizen, you can apply for a Certificate of Citizenship (Form N-600) for your daughter. USCIS processing times for a certificate of citizenship at its San Francisco and San Jose field offices range from eight to 15 months. It’s often very helpful to work with an attorney on this process as well.

I wish all the best to you and your daughter for a happy and healthy life in the U.S. Please let me know how things turn out for you.

Take care and stay safe!

Sophie

Learn more about Alcorn Immigration Law here 

Contact Alcorn Immigration Law here

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