Green Card thru marriage — Consequences of separation or divorce

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By Michael Phulwani

Spouses of US citizens (USC) and legal permanent residents (LPRs), (commonly referred to as “green card holders”) are entitled to seek permanent residence in most cases.

Spouses of USC

A spouse of a USC is categorized as an immediate relative. If the spouse of a USC is already in the United States in legal status, then a an immigrant visa petition and application for  adjustment  of status may be  filed for the spouse with the US citizenship and Immigration Services (USCIS). In some cases, even if the spouse has no legal status in the United States, he/she may still be able to apply for adjustment of status based on the marriage to a USC under §245(a) or §245(i) of the Immigration and Nationality Act.

Spouses of LPR

Visa numbers for spouses of LPRs are not immediately available due to backlogs. Therefore, an immigrant visa petition must be filed with USCIS initially. If the spouse is in the United States and eligible for adjustment of status, an application for adjustment of status can be filed with the USCIS when the spouse’s priority date becomes current or the LPR sponsor becomes a naturalized United States citizen.

Eligibility requirements for adjustment of status

To be eligible for adjustment of status, the spouse and the USC or LPR must be married at the time of filing and adjudication of the I-485 application by USCIS. The marriage must be bona fide and the burden of proof rests with the applicant to prove the validity of the marriage. The key issue is whether the marriage was valid at its inception. To determine marriage validity at inception, USCIS looks at whether  the spouses  intended to establish a  life   together at the time  of their marriage. USCIS can examine the behavior of the spouses both before and after the wedding to ascertain the intent to establish a life together. Such intent can be established through evidence of joint financial accounts, jointly titled  property,  creating   beneficiary rights, sharing health and  auto insurance and creating children together.

Consequences of separation on an adjustment application

A problem arises if the spouses start living separately between the date of marriage and the date of the adjustment interview. Though separation can be a highly relevant factor in determining whether the marriage was bona fide or not, separation itself is not a bar to the approval of the adjustment application, if the spouses are able to justify that their marriage was valid at its inception.

The USCIS New York district office has a unique procedure for adjudicating spousal petitions where there are issues about the marriage being genuine. In such cases, a written notice describing the rights involved must be given to the petitioner, a separate attachment of the list of rights must be sent out with the interview appointment letter and a list of documents to be submitted at the time of the interview should be mailed to the petitioner. The interview may be conducted with both spouses present, or they may be separated and questioned in the presence of a video camera. The interview will feature questions concerning the personal living arrangements and marital situation of the spouses. Questions can range from the layout of furniture in the marital residence to the names of family members, friends, and pets, to product brand names used by the other spouse.

Conditional residence:

Persons who obtain permanent resident status based on their marriage to USC or   LPR are granted conditional resident status if the marriage is less than two years old at the time residence is granted. During the 90 days preceding the second anniversary of  the grant of conditional residence, the conditional resident and the spouse are required to take steps to make the conditional status permanent. For this purpose, Form I-751 Petition to Remove Conditions on Residence has to be filed jointly by both spouses. Conditional residence is terminated if the conditional resident spouse fails to file the petition within the 90-day window or fails to appear for an interview.

However, if a conditional resident spouse’s marriage ends within the two year period, it is necessary to file for a waiver of the requirement that both spouses sign the petition. Following waivers are available and more than one waiver can be sought by the  conditional resident spouse by providing supporting evidence.

*Death and extreme hardship waivers:  A conditional resident spouse may individually qualify for a joint petition waiver if the other spouse has died, or it can be shown that he or she would suffer extreme hardship if removed from the United States, only if such hardship occurred during the two-year conditional residence period.

*Divorce or annulment waiver:  A conditional resident spouse can individually qualify for a waiver if it can be shown that the marriage was entered into in good faith, but the marriage was terminated by divorce or annulment prior to the filing of the joint petition.

*l Extremely cruelty waiver:  A conditional resident spouse can individually qualify for a waiver if it can be shown   that the marriage was entered into in good faith, but the applicant was battered or subjected to extreme cruelty by the US citizen or LPR spouse during the marriage.

Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

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