Introduction
When a non-U.S. citizen marries a U.S. citizen, they may receive conditional permanent residency—commonly known as a conditional green card—if the marriage is less than two years old at the time of approval. Conditional residency is a two-year status granted by U.S. Citizenship and Immigration Services (USCIS) that must be converted into full lawful permanent residency by filing Form I-751 to remove conditions. But what happens if the marriage ends before those conditions are removed?
Divorce during the conditional residency period creates uncertainty and often fear for the immigrant spouse. Many worry that a divorce will result in automatic deportation or denial of the green card. Fortunately, U.S. immigration law provides paths to remain in the country after divorce—so long as the immigrant can demonstrate that the marriage was entered into in good faith.
Florida family law and federal immigration law intersect closely in these situations, particularly in jurisdictions like Tampa, where international and mixed-status marriages are common. A Tampa divorce lawyer can play a critical role in not only resolving marital disputes, but also preserving immigration opportunities that may be at risk following divorce.
This article explains how conditional residency works, how divorce impacts that status, what steps are required to protect immigration rights, and how Florida divorce proceedings can influence USCIS decisions.
Understanding Conditional Residency
A conditional green card is issued to a non-citizen spouse who has been married to a U.S. citizen for less than two years at the time their residency is granted. This two-year period acts as a probationary stage, during which USCIS evaluates whether the marriage was entered into for legitimate reasons or to circumvent immigration laws.
To transition from conditional to full lawful permanent residency, the couple must jointly file Form I-751 during the 90-day window before the conditional green card expires. They must also submit supporting documentation to prove the marriage was real and not entered into for immigration benefits.
If approved, USCIS will remove the conditions and issue a 10-year green card. If denied, the immigrant may be placed in removal proceedings and potentially deported. Divorce during the conditional period interrupts this process and requires alternative strategies to secure permanent residency.
A Tampa divorce lawyer can ensure that the divorce proceedings produce documentation that supports the immigrant’s position in any related USCIS filings.
The Joint Filing Requirement and Its Exception
Ordinarily, Form I-751 must be filed jointly by both spouses. The joint filing requirement confirms that the couple is still married and living together, offering USCIS assurance that the marriage is bona fide.
When the couple divorces before filing jointly, the immigrant can still file Form I-751 alone by requesting a waiver of the joint filing requirement. There are three main types of waivers:
- Good Faith Marriage Waiver
The immigrant must prove that they entered the marriage in good faith but the marriage ended in divorce or annulment. Evidence should include joint financial records, photos, affidavits from friends or family, travel documents, and any other materials that prove a legitimate marital relationship. - Extreme Hardship Waiver
The immigrant must show that removal from the U.S. would cause extreme hardship, beyond the usual difficulties associated with deportation. This is a higher standard and is granted less frequently. - Battered Spouse Waiver (VAWA)
Available if the immigrant was subjected to abuse or extreme cruelty by the U.S. citizen spouse. The immigrant must provide police reports, restraining orders, medical records, therapist letters, or affidavits to support this claim.
The good faith marriage waiver is the most commonly used after divorce and requires careful preparation. A Tampa divorce lawyer can help ensure that the divorce record, court filings, and testimony support the immigrant’s claim that the marriage was genuine.
Timing the Divorce and I-751 Waiver Filing
Timing is critical when a divorce intersects with conditional residency. If the couple divorces before jointly filing Form I-751, the immigrant must file with a waiver. If the couple has already filed jointly and then divorces before USCIS makes a decision, the immigrant must notify USCIS and potentially convert the petition to a waiver-based filing.
In some cases, divorce proceedings are initiated close to the expiration of the conditional green card. If the immigrant fails to file Form I-751 before the deadline, they risk losing lawful status and being referred to immigration court.
A Tampa divorce lawyer can help the immigrant spouse coordinate the divorce timeline to avoid negative immigration consequences. In contested or lengthy divorces, the immigrant may need to file Form I-751 with a waiver while the divorce is still pending, then supplement the filing with the final decree once the divorce is finalized.
How Florida Divorce Proceedings Affect USCIS
Although USCIS is a federal agency, it relies on state court records—including divorce decrees—to evaluate I-751 petitions and determine whether the immigrant met the burden of proving a good faith marriage.
Florida divorce courts do not make immigration findings, but their rulings can indirectly affect the outcome of a waiver request. For example:
- A divorce decree that references a short-term or sham marriage may raise red flags
- A lack of mention of the immigrant spouse in financial disclosures may suggest separation or lack of integration
- Allegations of fraud or coercion made in court documents can damage credibility
A Tampa divorce lawyer can draft divorce pleadings, marital settlement agreements, and court submissions carefully to avoid language that may undermine the immigrant’s case. They can also ensure that uncontested divorce filings reflect the legitimacy of the marital union while still resolving the dissolution fairly.
Proving a Good Faith Marriage After Divorce
USCIS evaluates good faith based on the totality of the circumstances. The burden is on the immigrant to prove that the marriage was not entered into solely for immigration purposes. Evidence commonly submitted includes:
- Joint tax returns
- Lease or mortgage documents with both names
- Utility bills, insurance policies, or vehicle registrations
- Photos from weddings, holidays, and social gatherings
- Birth certificates of children born during the marriage
- Affidavits from friends, family, clergy, or community members
- Evidence of travel together, shared finances, or joint responsibilities
Even if the couple separated early or the marriage lasted less than two years, strong evidence can still establish a good faith marriage. A Tampa divorce lawyer can assist in gathering and organizing this documentation and may refer clients to immigration counsel to complete the I-751 process effectively.
Addressing Allegations of Marriage Fraud
Divorce proceedings can become contentious. In some cases, the U.S. citizen spouse may accuse the immigrant of entering the marriage fraudulently or threaten to withdraw immigration sponsorship. These accusations may be made out of anger or spite, but they can have serious consequences if USCIS takes them seriously.
USCIS has broad discretion to investigate fraud. Red flags include:
- Rapid marriage and separation
- Lack of commingled assets or joint living arrangements
- Inconsistent information provided in divorce filings versus immigration forms
- Prior immigration petitions for different spouses
A Tampa divorce lawyer can help rebut false allegations by ensuring that any claims made in family court are factually accurate and supported by evidence. If necessary, the lawyer may provide declarations or court records to immigration counsel for use in defending against a fraud investigation.
Can You Remarry and File Again After Losing Conditional Status?
If the I-751 petition is denied, the immigrant is placed in removal proceedings. However, they may remarry and potentially file a new green card application if the new spouse is a U.S. citizen.
This path is not without complications:
- USCIS will closely scrutinize both the original and new marriage for signs of fraud
- The immigrant may need to apply for a waiver of inadmissibility if they accrued unlawful presence
- If the original I-751 denial was based on fraud, a new petition may not be approved without overcoming that determination
The timing and success of a second marriage-based petition depend heavily on the factual history and supporting documentation. A Tampa divorce lawyer can play a supportive role by ensuring the divorce record does not contain adverse findings that could hinder future immigration filings.
Spousal Support and Immigration Status
During divorce proceedings, the immigrant spouse may be entitled to temporary or rehabilitative alimony. Immigration status does not disqualify a party from receiving alimony under Florida law. Courts consider:
- The standard of living during the marriage
- Each spouse’s income and earning potential
- The length of the marriage
- Contributions made by each spouse
A Tampa divorce lawyer can help undocumented or conditional resident spouses request alimony while ensuring that the case record supports their concurrent immigration goals. In some cases, the I-864 Affidavit of Support signed by the U.S. citizen spouse during the green card process may also serve as a basis for a separate support action, enforceable in federal court.
What If the Immigrant Is Detained or Deported During Divorce?
If the immigrant spouse is detained by immigration authorities during the divorce, the case can continue in absentia or with a legal representative. If deportation occurs before the divorce is finalized, the petitioner can still proceed with the case under Florida law.
A Tampa divorce lawyer can:
- Request remote participation via phone or video
- Coordinate with detention facilities to allow legal communication
- Finalize the divorce based on affidavit testimony and sworn filings
- Preserve the immigrant’s legal interest in property division, custody, or spousal support
Divorce does not shield someone from deportation, but having a final judgment and legal record of a good faith marriage may help support future immigration waivers or cancellation of removal applications.
Protecting Parental Rights During and After Divorce
Conditional resident spouses who have children with their U.S. citizen spouse must also address custody and time-sharing. Florida courts base custody decisions on the best interests of the child and do not automatically penalize a parent for lacking immigration status.
The undocumented or conditional resident parent can:
- Petition for shared parental responsibility
- Request a time-sharing schedule that accommodates travel restrictions
- Assert their rights to decision-making regarding education, religion, and healthcare
- Prevent the other parent from using immigration status as a weapon in custody disputes
A Tampa divorce lawyer will advocate for parenting plans that preserve the child-parent relationship, protect against international abduction, and account for potential travel or residency complications.
Using Divorce Records in Immigration Proceedings
One of the most overlooked aspects of divorce involving conditional residents is how the court file may be used in future USCIS interviews or hearings. The immigration officer may request:
- The divorce decree
- The marital settlement agreement
- Financial affidavits
- Custody orders
- Statements made in affidavits or depositions
Discrepancies between divorce records and immigration applications can be viewed as signs of deception. A Tampa divorce lawyer ensures that filings are consistent with the immigrant’s claims of a good faith marriage and that nothing in the record undermines the case before USCIS.
FAQ: What Happens to Conditional Residency After Divorce in Florida?
Can I keep my green card if I divorce before removing the conditions?
Yes, but you must file Form I-751 with a waiver based on a good faith marriage. You’ll need to prove the relationship was genuine, even if it ended in divorce.
Will I be deported if I get divorced before filing the I-751?
Not automatically. You still have the right to file with a waiver. If the petition is denied, USCIS may initiate removal proceedings, but you can defend yourself in immigration court.
What happens if I already filed the I-751 jointly and now we’re divorcing?
You must notify USCIS and convert your filing to a waiver-based petition. You will need to submit additional documents to show the marriage was legitimate.
Can I get alimony if I’m a conditional resident?
Yes. Florida courts do not deny spousal support based on immigration status. If you meet the requirements, you may be awarded alimony.
Do I need a Tampa divorce lawyer if I’m divorcing with a conditional green card?
Yes. A Tampa divorce lawyer can help ensure that your divorce proceedings support, rather than damage, your immigration status.
Can my spouse cancel my green card if we divorce?
They cannot cancel your green card. USCIS determines your status, and you have the right to file a waiver even without your spouse’s cooperation.
What kind of evidence do I need to prove a good faith marriage?
Joint bank statements, tax returns, photos, lease agreements, travel documents, children’s birth certificates, and affidavits from family and friends.
Can I still get a green card if my ex accuses me of fraud?
Possibly. USCIS will investigate, but you can present evidence to refute the claim. A lawyer can help you respond effectively.
What if my green card expires while I’m getting divorced?
You must file Form I-751 on time with a waiver, even if the divorce is not finalized. Delays can result in loss of status or removal proceedings.
Will my divorce be considered in future immigration applications?
Yes. USCIS reviews past marriages and divorces when evaluating future petitions. Accurate records and consistent documentation are essential.
Conditional residency after divorce is a high-stakes legal and immigration issue. With the right guidance, individuals in this situation can protect their status and continue their path to permanent residency in the United States. A skilled Tampa divorce lawyer understands the overlap between family law and immigration law and will ensure the divorce is handled with both legal and immigration consequences in mind.
The McKinney Law Group: Divorce Guidance Built on Clarity, Not Confusion
At The McKinney Law Group, we believe divorce representation should be clear, honest, and strategic. We guide Tampa clients through the legal process with focused solutions that prioritize long-term stability over short-term emotion.
We support clients in:
✔ Navigating Florida’s divorce laws with confidence
✔ Structuring parenting arrangements that reflect your child’s best interests
✔ Dividing property, debt, and business interests equitably
✔ Determining appropriate spousal and child support
✔ Modifying or enforcing prior court orders
Contact our office at 813-428-3400 or email [email protected] to schedule your consultation.