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Immigration Law - Houston

Conditional Green Card and Divorce?

Conditional Green Card and Divorce: this is a subject immigration attorneys often hear about. There is much more information about the green card process than we can cover in one blog post, since there are so many scenarios that can arise when a marriage ends and immigration issues are involved. If you’re applying for a green card  or you have a conditional green card and you’re getting a divorce, this is what you need to know.

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In reality, marriage is a commitment to another person, and the process of getting the person legal status can take months or even years of processing. Where a marriage is real, no matter what it takes, if the non-U.S. citizen gets their green card (“resident card”), everyone’s breathes a sign of relief and is happy.

What happens if the marriage ends before the person gets their green card?

Sometimes, people marry with good intentions – they love each other and they want to be together. But the marriage ends after a few months or years. Sometimes the split is amicable – things just didn’t work out for the couple.

After all, getting used to living together in a new country can be a shock if the non-citizen spouse has recently moved to the United States. Other times, a spouse leaves the marriage because abuse has occurred –  either emotional or physical.   

Whatever the reason, when a marriage to a non-citizen ends, problems besides the usual division of marital property come up:

  • What happens to the non-citizen’s status in the United States?
  • What if the non-citizen has a Conditional Resident Card that will expire soon?
  • What if the couple never filed anything based on their marriage, and now it’s ending?

It’s sad to see a marriage end. Where abuse occurred in the marriage, it’s traumatic for an abused spouse even after the couple is separated. Personally, I find it disgusting when a U.S. citizen threatens to have his/her spouse deported as a way of exerting power. But these things do happen.

Fortunately, there is hope for non-citizens in these situations. It’s important to seek advice from an experienced immigration attorney before you give up on your immigration case or decide there is nothing you can do. Here are some of the options for spouses in these situations are:

Conditional Green Card and Divorce

Did you know that when a couple filing a marriage-based petition has been married less than two years at the time the non-citizen gets their green card, a Conditional Resident Card is issued that is good for only two years?

That’s right – the person is a Conditional Permanent Resident (“Conditional Resident” or “CPR”). There’s a reason for this – in the mid-1980s, the United States Congress got worried that people were marrying just to get green cards and committing fraud on our immigration system.

So, they passed the Immigration Marriage Fraud Amendments (IMFA) in 1986, and since then, if the couple has been married less than two years when the cared is issued, it’s a two-year conditional card, and not a long-term, 10-year green card that just gets renewed every 10 years.

In this situation, a couple must file a Form I-751 Joint Petition to Remove Conditions on Residence with U.S. Citizenship and Immigration Services in the 90 days before the Conditional Green Card expires and show that they are still together.

What can that person do if their marriage ends before this happens?

For anyone whose marriage ends before their Conditional Residence expires (or whose Conditional Green Card has already expired), there is hope. If you cannot file a Joint Petition to Remove Conditions on your residence because your marriage has ended, you can file an I-751 Waiver. The I-751 Waiver allows a CPR to file to remove the conditions on his/her green card even if the marriage has ended.

Three bases for the I-751 waiver where the couple has divorced:

  1. The marriage was entered into in good faith.

The Good-Faith exception for the I-751 waiver gives a couple whose marriage was entered into in good faith but has now ended a way to address the conditional resident spouse’s status, and this is particularly important where a couple has children who have been raised in the United States and intend to remain here, or where a CPR may face discrimination if required to return to their home country abruptly after the end of their marriage.

  1. The conditional resident spouse experienced battery (physical abuse) or extreme cruelty (emotional abuse) during the marriage

A CPR who has experienced abuse in the marriage may file an I-751 waiver as well. This provides the CPR with a path to move forward without having to remain in a dangerous situation. A CPR whose marriage ends due to abuse must show that the marriage was entered into in good faith and that there was physical or emotional abuse in the marriage.

  1. The conditional resident would experience extreme hardship if the conditional residence is terminated.

A CPR can also remove the conditions on his/her residence based on the extreme hardship he/she will experience if not allowed to remain in the United States. The Board of Immigration Appeals recently held that the hardship the person will experience based on circumstances that arose during the two-year period of conditional residence. Thus, it is important to document the events that took place during the two-year conditional residence period that will cause hardship to the CPR.

What if we file a Joint I-751 Petition and We Decide to Divorce while the I-751 is still Pending? 

In this situation, it is important to have an experienced immigration lawyer involved. It is possible to request that the I-751 be changed to a waiver, but timing and communication with USCIS are key. You will also have to be careful to demonstrate the basis of your waiver request.

Can I file an I-751 Waiver if My Spouse and I are Separated but not Divorced?

USCIS’s policy is to request proof of divorce where an I-751 waiver is filed without proof that the marriage has been terminated. You may file the I-751 waiver before you have divorced, but USCIS will request the divorce, often within a few weeks or months of receiving the waiver. It is important to be ready to provide it when requested.

What if my Conditional Residence has already expired?

For Joint I-751 petitions, an explanation of the reasons for the delay in filing is required. Seek help from an experienced immigration lawyer to be sure you provide this and can respond to any additional inquiries from USCIS.

I-751 waiver requests can be filed at any time, even when the CPR has already expired. They must be based on at least one of the three criteria discussed above.   

What if I was in an abusive marriage, but we never filed any petitions and I never got Conditional Residence?

If you have married a U.S. Citizen or Permanent Resident and experienced physical or emotional abuse, but you never obtained a green card based on your marriage, you may qualify to file a self-petition under the Violence Against Women Act (VAWA). Both men and women who have experienced abuse in a marriage to a U.S. Citizen or Permanent Resident may file a VAWA self-petition.

Marriage is hard work, and not all marriages work out in the end. But even if your marriage is over, your immigration case might not be. Consult with top immigration lawyers in Houston about your case so you know your options.

If you have a question about your immigration status or would like to schedule a consultation with the Law Office of Kathryn N. Karam, P.C., please click here:

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