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US Immigration
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Posted 8/20/2009 |
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LEGAL NOTES /
By REUBEN SEGURITAN |
Removing Green Card Conditions Pending Divorce
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A green card obtained on the basis of marriage to a U.S. citizen
or permanent resident is conditional if the marriage occurred
less than two years at the time it was granted.
To remove the condition, Form I-751 (Petition to Remove
Conditions in Residence) must be jointly filed by the couple
within 90 days before the second anniversary of the date that
the conditional resident status was obtained.
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If the petition is not filed, the resident status is
automatically terminated.
In filing the petition, the husband and wife must prove that the
marriage was legal where it took place; the marriage was not
entered into for the purpose of procuring permanent resident
status; no fee other than attorney’s fee was paid for filing of
the underlying relative petition; and that the marriage has not
been terminated. |
If the petitioning spouse does not sign the petition, the
conditional resident may file for a waiver of the joint filing
requirement under any of the following grounds:
1) the removal
from the U.S. of the conditional resident would result in
extreme hardship;
2) the marriage was in good faith but that it
has been terminated;
3) the conditional resident entered the
marriage in good faith but the petitioning spouse committed
battery against the conditional resident. |
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What happens if the joint petition is not filed and the couple’s
marriage has not been terminated but a divorce or annulment
action is pending?
A waiver may still be filed on the basis of termination of
marriage. The waiver will not be granted based on the pending
divorce or annulment but according to a recent guidance memo
from the United States Citizenship and Immigration Services
(USCIS) Associate Director, the I-751 will not be adjudicated
outright but a Request for Evidence (RFE) with a response time
of 87 days will be issued to the conditional resident.
This will give him/her ample time to submit the final decree of
divorce or annulment in support of the waiver request.
When proof of the termination of the marriage is submitted, the
waiver may be granted. If no evidence of termination is
submitted within that period, the USCIS will deny the I-751
petition on the ground that the divorce or annulment has not
been finalized and it will issue a formal termination of the
conditional resident status. The case will then be referred to
the Deportation Unit for issuance of a Notice to Appear (NTA)
before an Immigration Judge.
At the deportation hearing before the Immigration Judge, the
conditional resident may again establish his/her eligibility for
waiver. But if he/she still cannot submit a decree of divorce or
annulment, the Judge will deny the waiver. The conditional
resident may then base his/her waiver not on the termination of
marriage but on hardship to him/her or battery or physical abuse
committed by the petitioning spouse.
Hardship as a ground for waiver involves an examination
of the conditional resident’s age, family ties in the
U.S. and abroad , length of residence in the U.S.,
health conditions, economic and political condition of
his/her country, occupation and work skills, immigration
history and position in the community.
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REUBEN S. SEGURITAN
has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281 |
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