DIVORCE is an emotionally difficult situation that most people wish to avoid. However, despite many couples' carefulness and commitment to their marriage, divorce is sometimes inevitable.
While divorce is unpleasant, it is important to be aware of the ways in which it can affect your immigration status.
When an immigration application is based on marriage and is pending before the United States Citizenship and Immigration Services (USCIS), the immigrant spouse will be considered out-of-status, and may be subject to removal proceedings upon dissolution of the marriage.
A person who immigrates to the United States on the basis of a marriage that is less than two years old at the time of his/her admission will receive conditional permanent residency. If the marriage is still intact after two years, the immigrant spouse is eligible for full permanent residency.
If the qualifying marriage ends in divorce or annulment during the two-year conditional residency period, the conditional resident will lose his/her immigrant status and become deportable.
However, the immigrant spouse may apply for a waiver of the joint filing requirement based on the parties' good faith when they entered into the marriage.
PROCEDURE AND STEPS
If your spouse filed a petition for permanent resident status on your behalf, then your application process has begun. However, if you become divorced before the approval of your green card, the situation will be decided according to your entry status. This depends on whether you are a primary beneficiary or a derivative beneficiary of your entry visa.
If you are the primary beneficiary of an employment-based visa, for instance, you may continue with the green card application process. However, as a derivative beneficiary, since you are no longer the spouse of the primary beneficiary of the visa — the sole criteria that made you eligible in the first place — you cannot continue with the process.
DIVORCE BEFORE CONDITIONAL GREEN CARD INTERVIEW
Your marriage to a US citizen or permanent resident doesn't automatically make you a permanent resident in the US, but it does open the door for a green card.
The USCIS will want to ensure that your marriage is genuine, especially if it is less than two years old. So when you apply for a marriage-based green card you will be issued conditional permanent resident status, renewable after two years.
Holding a conditional green card simply means that your resident status is given on conditions which can be revoked if you fail to fulfil the immigration requirements.
As a US immigrant through marriage, one of the conditions that you must prove is that your marriage isn't fraudulent, meaning that it wasn't arranged just to get a green card. Therefore, if your marriage is less than two years old, you will be issued a conditional card with a two-year validity period. This is why it is required that couples file a joint I-751, Petition to Remove Conditions on Residence. To complete this form, both members must be present to sign.
Dissolving the marriage in less than two years of your permanent resident status will likely be a red flag to USCIS officials. It casts doubt on your claim that your union was entered into with good faith. Therefore, this situation will require extra effort to prove that the marriage was legitimate from the start.
To do this, you will need to file and submit a waiver for the I-751 joint petition, meaning that you want to process the removal of conditions on your green card without your ex-spouse.
The purpose of filing the waiver is to prove to the USCIS that the marriage was entered into in good faith, and the divorce wasn't your fault.
Some of the pieces of evidence to present when filing your waiver include:
1. Proof of irreconcilable differences between you and your ex-spouse, such as adultery, criminal behaviour and abuse
2. Evidence showing your attempts to reconcile, such as records of sessions you had with a marriage counsellor
3. Proof that the marital union was valid, such as photographs, evidence of shared property or leases, joint bills, and other evidence of a life together
4. Proof that the immigrant spouse will suffer extreme hardship if sent back to his/her country of origin, such as a statement about the life built in the US thus far.
These pieces of evidence along with the waiver application may establish that the marriage was valid and that you should not be denied permanent resident status.
Nevertheless, your claims, regardless of how tenable, will still be put under intense scrutiny by the USCIS. Therefore, it is advisable that you consult your immigration lawyer before filing the petition.
CONSEQUENCES OF FILING YOUR APPLICATION LATE
If you divorce your spouse within the two years of your conditional resident status, you will need to file your waiver for the joint I-751 within 90 days before the expiration of your conditional resident status. Failure to do so may result in termination of your conditional resident status and the initiation of immediate removal proceedings by the USCIS.
Therefore, you will be required to notify the USCIS that you have failed to remove conditions on your permanent resident status as expected. You will then receive a summons to appear at a hearing, which will allow you to 'review and rebut' the evidence against you.
However, if you can prove in writing to the director at the appropriate USCIS centre that you have a genuine reason for not filing for a waiver before the expiration date, you may be allowed to file after the 90 days. It is within the director's discretion to either approve your petition and restore your resident status or decide otherwise.
To avoid possible removal and all the stress that may follow, you need to ensure you file the waiver before the 90 days.
Venice Williams-Gordon is an attorney-at-law and partner at Lewis, Smith, Williams & Company.