Divorcing Your U.S. Citizen Husband/Wife and Keeping Your Green Card
In the Guide, Attorney Robert Perkins, also known as The Immigration Professor, discusses the possibilities of getting or keeping your green card when your marriage to a United States Citizen is ending through divorce or separation
IntroductionMany times, an immigrant will come into my office if they are in a bad marriage with a United States Citizen, afraid that separating or divorcing from the U.S. Citizen will end of their chances at keeping or obtaining a green card. Nothing can be further than the truth.
This article will give an overview of the immigration options available to immigrants who are or were married to United States Citizens and want to stay here based on the marriage itself, even though the marriage has ended in divorce. First, we will discuss situations where the immigrant was petitioned by the U.S. Citizen, has obtained a two-year green card and is getting divorced during the two-year period. Next, we will discuss situations in which the U.S. Citizen has filed a green card for the immigrant, but the couple separates prior to the green card interview. Finally, we will discuss situations where the couple has not filed any paperwork for the immigrant * or a divorce is filed prior to the initial green card interview -- and the immigrant would like to obtain status because he/she was married in good faith to the U.S. Citizen.
Situation 1: Immigrant Gets a Two-Year Green Card from the Marriage, but the Marriage has Failed andWhen an immigrant obtains permanent resident status because of a spousal petition, and the couple has been married for less than two years, the immigrant will receive a *conditional green card* for two years. The immigrant is then required to file a form I-751, Petition to Remove Conditions to transition to a regular 10-year green card. The purpose of the petition is to give USCIS a second chance to check that the couple is in a real marriage. If the couple is still married, they file the I-751 petition jointly and provide proof to the immigration service that they are in a real marriage.
However, not all marriages last forever. In some cases, the couple gets separated or divorced prior to the two-year anniversary of the beneficiary obtaining the conditional green card. When this happens, the immigrant can still petition to have the conditions removed, transition to a permanent 10-year green card and eventually become a naturalized United States Citizen. The immigrant will need to file an I-751 petition along with a request for a waiver of the joint filing requirement. This allows the green card holder to waive/excuse/pardon the normal requirement that the US citizen jointly sign and file the I-751 petition. If the petition is granted, then the immigrant gets a regular 10-year green card and can apply for naturalization 5 years from the date of the initial 2-year green card even though he/she is divorced. In fact, this petition can only be granted when the couple divorces and filing for divorce is required before filing this type of petition.
Although there are a few ways to file the I-751 Petition while separated or divorced, the most common one is to show that the marriage was *in good faith* and not just to get a green card. I typically have my clients write a detailed statement explaining of how they met and married their spouse and what happened during the relationship and what caused the relationship to break down leading to separation and divorce. In addition, we submit the type of good faith marriage evidence that the client submits to immigration when they go to their marriage interview. Depending on the facts of the case, it may still be approved even with a small amount of evidence. In fact, some years back I represented a woman from the Philippines who came here with an initial two-year green card and, after living with her husband in bad conditions for only 3 weeks, left the marriage. Our firm was still able to get enough evidence for her to keep her to year green card by showing the awful conditions she lived in and that she entered the marriage in good faith.
Situation 2: Immigrant has Separated Prior to Initial Green Card InterviewI have had several cases in my office when an immigrant comes to me when their interview is scheduled, and they are separated from their U.S. Citizen spouse. Luckily, it*s possible that the immigrant can still get their green card. The law states that if the marriage was valid at its beginning * in other words, both the immigrant and the U.S. Citizen fully intended to share a life together when they got married * it is valid for immigration purposes even if the partners are separated and the marriage is no longer viable. A separation is only relevant in determining whether a marriage was valid when entered. So again, like above, if the immigrant can show that both parties entered the marriage with the good intentions of having a shared life together, then the immigration service can grant the green card even though the couple is separated and living apart at the time of the interview. Please keep in mind though that if the couple is legally divorced at the time of the interview then the immigrant cannot be approved for a green card.
Situation 3, The Immigrant has Never Filed for a Green Card Based on the Marriage and is Now SeparatThis is the most challenging of the three situations. In this case, though, the immigrant may still be able to *self-petition* to get their green card if they can show that they married in good faith and that they were subjected to battery OR extreme cruelty during the marriage. The petition must be filed within two years of the divorce being finalized. There is some misunderstanding in the immigrant communities that these type of petitions * called VAWA petitions * require that the immigrant show that they were physically beaten and document that with police reports. However, this is not always the case.
As mentioned above, the law includes being subjected to *extreme cruelty which regulations say can include * but is not limited to *psychological or sexual exploitation. 8 C.F.R. **204.2(c)(1)(vi) & (e)(1)(vi). I had one case a few years back, for example, where the U.S. Citizen husband pushed his wife once during an argument. There were, however, multiple events of psychological exploitation where he made fun of her, ignored her and made her feel that she was not good enough. There were no police reports of physical or mental abuse, but we had the immigrant go to a psychologist to show that her husband*s verbal abuse had caused her mental harm. We also obtained affidavits from friends and family who verified the mental suffering she endured and showed that she went into the marriage in good faith. The case was won with this evidence on a self-petition by the immigrant.
ConclusionThere are many situations where an immigrant can stay in the United States and keep their green card when married to a United States Citizen even when the marriage has ended or is not working. The law is very generous about this. To get your case evaluated, please call out offices at 888-439-4560 or visit us online at http://ImmigrationProfessor.com. We represent clients all over the United States.