Proving Hardship in Marriage Cases

An immigrant's past unlawful presence in the U.S. (defined as "illegal entry & illegal stay" or "legal entry & overstay") can ruin marriage plans when a U.S. citizen is trying to help legalize his or spouse's status. Many immigrants have no idea about the 3 and 10 yr. bars for prior unlawful presence. The three year bar states that any immigrant who is the U.S. for 6 mo or more without a visa (unlawfully here) and then leaves the U.S., the immigrant usually cannot come back to the U.S. for 3 years. It's much worse if the immigrant has stayed for 1 year or more without lawful presence; it's a 10 year bar once the immigrant leaves the U.S. The only exception to these harsh penalties for unlawful presence is if the immigrant is married to a U.S. citizen or lawful permanent resident or has a U.S. citizen child and either the spouse or child will suffer "extreme hardship" if the immigrant is not allowed to re-enter the U.S.


But, what is “Extreme Hardship” in 3 & 10 Year Bar Cases?

In each case, to win, it must be determined that a combination of hardships takes the case beyond those hardships ordinarily associated with deportation, e.g., economic detriment due to loss of a job or efforts ordinarily required in relocating or adjusting to life in the native country. An analysis of hardship to U.S. citizen or LPR spouses and/or USC or LPR parents must be careful and individualized

Relevant factors include:

• age of the subject
• family ties in the United States and abroad;
• length of residence in the United States;
• conditions of health;
• conditions in the country to which the alien is returnable/qualifying relative would relocate, such as economic and political;
• financial status – business and occupation;
• the possibility of other means of adjustment of status for alien;
• whether of special assistance to the United States or community;
• alien’s immigration history;
• alien’s and qualifying relative’s position in the community;
• foreign languages spoken by alien and qualifying spouse or parent
  ability of the USC or LPR spouse or parent to relocate to be with the alien (employment opportunities, relocation adjustment, foreign language(s) spoken; financial hardship in relocating);
• financial hardship if stays in US without alien
  the existence of qualifying spouse or parent’s property or business ties in the U.S.
  
  Note: The more recent the acquired equities, the less weight they may be given; and the younger the marriage, or the wealthier the qualifying spouse (or indirectly – the alien), the better educated the qualifying spouse (or indirectly - the alien), or more employable the qualifying spouse in the country of the alien, the less likely there will be a finding of extreme hardship.

Perez Gonzalez & marriage cases

Immigrants with prior deportation orders or immigration violations who live within the 9th Circuit and who are married to U.S. citizens or lawful permanent residents may be able to get their green cards, despite their prior immigration violations. Those who live in the states of California, Arizona, Nevada, Alaska, Hawaii, Montana, Idaho, Oregon, Washington and the territories of Guam and the Mariana Islands may benefit from this new caselaw.

In Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), the United States Court of Appeals for the Ninth Circuit held that an immigrant who was inadmissible (not able to get a green card) because of these prior immigration violations:

Any alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed and who enters or attempts to reenter the United States without being admitted

could apply for a green card without having to leave the U.S. if the alien was grandfathered under section 245(i) or whose family member or employer filed an immigrant visa before April 30, 2001. A grandfathered immigrant can also include an immigrant whose parent or spouse has an immigrant visa petition filed for them but not one directly filed for the immigrant.

An alien is allowed to take advantage of this decision as long as s/he applies for retroactive consent to reapply for lawful admission.

In Perez-Gonzalez v. Ashcroft, the court found that the statutory terms of §245(i) recognized that individuals are living in the country without legal status and that the provision was reenacted to allow relatives of permanent residents to avoid separation from their loved ones.

In a later decision by the Ninth Circuit, Acosta v. Gonzalez (2/23/06), an immigrant first entered the country without inspection in 1993. He twice departed, in 1996 and 1999, and reentered without inspection both times. In April 2001, he married a U.S. citizen and applied affirmatively for adjustment of status (green card process in the U.S.) pursuant to INA §245(i).
The court held that Perez-Gonzalez controlled and the immigrant was eligible to get his green card in the U.S. despite the illegal entries and unlawful presence.

Conditional Resident Wants a Divorce

This is a common consultation scenario. The conditional resident immigrant has a 2 year green card because their marriage to their US citizen spouse was less than 2 years old at the time the green card was granted (approved). The conditional LPR will lose his or her green card if s/he does not petition with their spouse during the 3 month period prior to the green card's expiration, with limited circumstances (waivers).

I often get the question: how long do you have to wait after you first get your green card before you leave your US citizen spouse if you know it's not working out? First of all, there's no magic number but if you leave in the first six months, it does look really suspicious that you married your spouse for immigration purposes, not love or other reasons (some people marry for financial and companionship reasons, hey, it's allowed as long as achieving an immigration benefit is not the main reason for the marriage).

It's a matter of discretion and credibility based on the documents you provide which may even include a statement from you explaining the early break-up. The officer reviewing the petition will be looking for joint documents that give evidence of accounts in both of your names that are active and remain active before and after your green card interview. The longer those are open the better. Don't just have a joint bank account for the hell of it, though. CIS is looking for commingling of assets; that means, you deposit your salary or paycheck intot the joint account, not just $100 a month so you can say you have a joint account. CIS is looking for typical documents they believe a married couple should have (caveat, CIS is still stuck in the mentality of the 1950s that married couples do share all costs and tangle assets; the harder cases are those of the independent modern couple that has their separate accounts; but it can be done.).

But, let's say you stick it out and file the petition to release the condition on residency with your spouse and then split up right away or file for divorce the minute it's approved. If you ever apply for citizenship, that could come back to haunt you. The citizenship officer will know when you got divorced because it's stated on your naturalization application. Again, life happens, and true relationships can deteriorate quickly but you're going to have to document and explain the dates so be careful. If your marriage is really falling apart (whether abusive or just because of "irreconcilable differences"), you may be better off filing a waiver based on abuse or showing you were in a bona fide marriage that you entered into in good faith and make your case. Trying to pull a fast one on CIS by staying together on paper could hurt you if you file together and your spouse refuses to show up for the interview if another interview is scheduled!

So, to make a long answer, well ... long, there's no perfect time to split up; it all depends on your case and what your story is and how believable you are if push comes to shove and you have to appear for an interview. As always, talk to an attorney who can look over the documents you do have and who can assess your options (waiver or joint filing). Good luck.

Husband "forces" wife to remain outside the US; is green card lost?

I recently had a similar situation to this arise in a consultation. A wife had received her green card based on her marriage to a US citizen. He left to live in another country. She followed him. What she expected to be a short stay turned into years in the foreign country. She wanted to return because the relationship became psychologically abusive and she was never physically forced to stay with him all that time. Did she lose her green card?


Returning resident status refers to a permanent resident who has been outside of the US beyond an expected period ("for a protracted stay") but has never abandoned their U.S.
residency (a term of art, not literally abandoning their ownership of a house). It all rests on
the intent of the immigrant but the longer the stay, the fewer ties in the U.S. that remain,
the conduct of the immigrant while outside the U.S. can all factor in as to whether the immigrant
intended to give up their U.S. residency. Plus, it's hard to argue that the protracted stay was due to circumstances outside of her control if she was never physically detained by her husband,
held prisoner without the right to leave her foreign "residence" with him. To make the situation
even more unfair, the law automatically assumes that any children under the age of 16 who also had their green card when they left with the mother from the U.S. had the same intent as the mother. This seems really unfair to the child who has no choice but to go with the parent, so if
the parent cannot prove intent and circumstances beyond her control, the child is out of luck and
will lose his or her green card.

An example of how this works if the facts were just a little different (if mom had never left to be with dad), in one such documented case, as stated in the Department of State's Foreign Affairs Manual:

In a particular illustrative case of protracted stay abroad by a child, an alien, born in Bermuda in 1941, was formally adopted at the age of six months. The adoptive mother and child were admitted for permanent residence in 1949 but approximately ten months later the child was returned to Bermuda because the adoptive mother reportedly was unable to care for the child properly and work at the same time. The child remained in Bermuda for six years, most of the time in the custody of a guardian. The adoptive mother in the United States contributed regularly to the child's support but never visited the child. When nearly 14 years of age the child applied for a special immigrant visa as a returning resident alien under INA 101(a)(27)(A). The Department determined that the child's protracted stay abroad was for reasons beyond the alien's control [see 22 CFR 42.22(a)(3)] and, therefore, had not affected the child's status as an alien lawfully admitted for permanent residence.