Saturday, September 09, 2006

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.

41 comments:

Anonymous said...

We have I751 interview coming Up. My
husband and I live under same roof,
no marital relationship at all. There is an age-gap, that's okey as long as
in truth. He has misrepresented himself on I751, he did not live at
home but lived with his girlfriend
for 2 years. Left belongings at home
in case INS called. For I751 there is a qualifying marriage of 3 years for a true husband & wife relationship. Living under same roof, as room-mates does not qualify him at all. If the inteview officer
asks me something that I do not
want to answer in a lie, I am going
to plead the 5th. I have asked husband if he wanted to take pending
divorce papers with him. He didn't answer. I am taking them with me just in case. I do not find this
amusing at all. In fact, there is too much risk. He says, he does not
want to do for me, until after interview!! this is a joke... the time to do is now. He say he's not
leaving and not divorcing...right now. I don't believe a word of it.
I do care more than anyone knows.
I am tired of being verbally abused by him. Can I plead the 5th at the
interview or walk out!
I am very upset, not about marital relations or marriage, but
fraud! I don't want to be charge
with it.

Anonymous said...

What is qualifying for immigration
marriage? Is living as a true
husband and wife?
Legal papers have legal ramifications but alien husband seems only to be
a "signature guy". He will do what
works for him. He will not do for
me unless it works for him. He is
unfair. Being older, i am a woman
just the same, if the green card is
real....then he should be real in
what we do.
I have put in 100%, he has put
nothing. He maintains a very single
life. He maintains a married life
only that he lives with "spouse"...
for immigration purposes.
It's crazy I know....leading with
one's heart... is awful.

Anonymous said...

on I751, on question, regarding
when "conditional resident lives",
he lived with girlfriend for 2 years.
He said, he was leaving his belongings in case immigration visited. Of course, this is all wrong. When
i told him about the misrepresentation, he laughed. I don't
think it is funny at all. Then said,
if I didn't sign he would have to
leave f. country!.....
So the I751 is gross misrepresentation! Is this correct?

Anonymous said...

Quite out of topic but still relevant. I just want to share my story. I am not yet a conditional permanent resident because my adjustment of status is still pending @ the INS. My husband wanted me to move out of the house because he has a new girlfriend. He said he wants us to stay married but he just wants me to leave because he said that he's concerned about my immigration status so he wants us to pretend that we are still together until my interview comes. I didn't leave. Why? Because the truth is he's doing himself a favor not me. He can easily file for a divorce on the grounds of abandonment and no guarantees that he will not report me to the INS. Or he can play me on the palm of his hand because of his power over my immigration status. Abusive spouses shouldn't be tolerated at all. I am glad I consulted an attorney. Every single penny is worth it.
Like what Nancy Reagan said "Just say NO".

Laurie said...

What if you are still married and have been for years but are living separate but there is no legal divorce?

Atty Heather said...

Dear Laurie:

If you have been married for years and no divorce yet but are separated, I don't see how the green card is a conditional one. I'm assuming you mean that the conditional green card is now expired and the immigrant spouse has not yet applied to remove the condition. A CONDITION CAN BE REMOVED FROM A GREEN CARD EVEN IF FILED LATE. CIS has to believe it was a credible reason for the delay for the late filing to be accepted and a late filing can be accepted up until the time the immigrant is placed in removal proceedings. A judge can only review a conditional green card removal joint or waiver petition if it was first filed with CIS before the removal proceeding has started.

Another point to clarify is that if the couple is separated but not divorced, the immigrant only has two options - a waiver either based on showing that the immigrant will face extreme hardship if forced to return to their home country OR the marriage was entered into in good faith and the immigrant suffered extreme cruelty from their spouse. Neither of these waivers require a final divorce decree and neither requires that the couple remain living together. Of course, the longer the immigrant waits to apply to remove the condition on their green card, the more difficult the case may be to win given the time and access to evidence.

Anonymous said...

Hello! I'm in love with an immigrant with a conditional green card and who is married. She doesn't want to be in that marriage any more because they have irreconcilable differences. She has been married to him for over 2 years. If deep down she really wants to be with me and I am a US Citizen, what is the best advice you can give her?

Anonymous said...

Based on your experience Heather, is it possible for someone to marry someone, obtain their conditional green card, get the condition removed and eventually get US Citizenship - all without ever consummating the marriage? Should the immigrant feel pressured to have sex if she just wants to be able to cover that base?

mrbrice said...

I have been married to a girl from China for some time now, and in the next 5 months we will be coming up on being able to remove her conditional green card. that being said, our marriage is slowly going downhill and I don't see it working out. I still care for her and don't want to see her go back to her country, so I would like to see her get a green card (call me a romantic, I suppose).

my concern comes from the idea that we will get divorced within a short time of having the conditions removed. Will I have to worry about the marriage being looked at as a sham?

Also, Heather, I have a more complicated question to ask, but don't want to post it here. (I know that sounds scary, but how else can I put it?)

Anonymous said...

My friend got married and have a child, she got permanent residence but she divorce recently before becaming a us citizen. Could she still apply for naturalization?. Soem peopel said yes and other no. Her marraige was real and the fact that they had a daughter make her more real. I think. Please advise

Anonymous said...

I received my green card recently and have two years conditional. My Citizen husband just committed adultery and refuses to stop seeing his lover. Now says he wants a divorce but I do not as we have been married for many years and did have a happy home. If he does push for a divorce where will I stand with my Citizenship? Please help with any advice - distressed!

Anonymous said...

We filed my I751 in March, but it's still pending. On Dec 1, my US citizen wife moved out with no reason, unannounced and now wants a divorce. As the I751 is still pending, what should I do right now? File a new I751 with the waiver or just wait and hope the current I751 is approved? BTW, we haven't been requested to an interview yet and it's been pending now with Texas for 9 months.

Anonymous said...

hi Heather, If a permanent resident has had conditions removed, and is still married, but separated and has filed for divorce, can they apply for naturalization after 3 years of being married and a permanent resident if they are not yet divorced?

Anonymous said...

A year ago I married my girlfriend of 2yrs who is a US citizen. We had our I797 interview early this year and were told by the immigration officer that our case could not be approved in that moment and that they needed more time to investigate. Unfortunately, to make matters worse,I recently caught my wife cheating on me. I want to divorce her but I want to know what could happen to me and to her if I do that while being investigated.

Atty Heather said...

Dear Mr Brice:

Marriages don't work out, a fact of life, even immigration has to contend with. If a divorce becomes final or is filed right after the condition is removed, then yes, it can appear that the marriage was fraudulent to begin with. This will only be known to immigration, usually, and come under their review, if your ex-wife applies for citizenship when she's eligible since her divorce date shows up on the naturalization form. She will need to have a good explanation for the timing and what went wrong. A lot of it is just credibility.

Because she's no longer married to a USC, though, remember she won't be eligible to even apply for natz until 4 years and 9 months have passed since her LPR status was approved (the "LPR since" date on her green card).

Anonymous said...

Hello I'm in love with an illegal alien, we are marrying for love (at least I am). My question is how long do we have to wait before he can legalize his status ?

Anonymous said...

Need an ans? Help! I'm a USC married a man who has just gained CR on 7/2/08; he had to return hom to leave the military, now he's saying he doesn't know how long before he returns to US. How long can he stay out of the country legally before the CR is revoked? Also, how can I go about having his status revoked, since he's not being faithful, even though I married him for love, realizing now, that this was just his agenda. Would prefer if he screws his own self up without me having to do anything.

unhappy man said...

My wife and I are married since April 2006. I received my conditional residence March of 2008 and also found out that I was HIV+(because of the required medical). We migrated from an island in the pacific to here in California June 2008 and lived with other relatives until we had our own place. My question is that, she is no longer happy with our marriage as I am. We are seeing that we sometimes are not really looking in the same directions. She's 21 and I'm 28 years old. A big part I believe of her being unhappy is because of the knowledge of my sickness. If I apply for dissolution of our marriage, will I still be able apply for the lifting of the conditions on my residence? Or will I get deported? Do I ask her to file for us(dissolution)? Since about 3 days ago she hasnt gone home due to a fight we had over text messages. What do you believe is the best thing I should do?

Anonymous said...

Heather, my green card expires next month. I have everything ready to send in but what is missing is my husband signature. We are "seperated". But he left us, his family, the day before christmas, We have two children. He is not wanting to sign the papers. What can i do? I dont want to file for divorce and he isnt filing for divorce yet neither.

Anonymous said...

I entered to marriage in good faith. My wife is US citizen. We both filed joint petition. Since her family is based abroad, she left US to see her family, I was working in US alone and thought the relationship was fine.

She was abroad for 1 year, and she filed divorce on her own a month before the interview for removal of conditional status without my acknowledge, and she divorce became legitmate after 6 months of seperation. However her name was on my lease, phone bills and insurance all had her name on it.

Since the petition was filed jointly, before the interview she divorced with me without my acknowledgement, what should I do to be in status and continue working in the state? We entered marriage in good faith, the relationship turned back and she was willing to help me remove my removal of conditional status of permanent residency, however she found a bf, then she had enough evidence for seperation to guarantee the divorce and decided not to come back for my interview after she filed joint petition. She mentioned to me not to bother her and she will not come back to US for anything. Please let me know what I should do. Thanks.

Anonymous said...

Hi,

my husband and I had a great marriage for a bit over a year.In the past few months things have not been going well. I have been a conditional permanent resident only for two and a half months. My husband wants to get divorced. I don't know what's going to happen to me. I am scared. Please help. What should I do?

Anonymous said...

Can you give me an advice? My sister has a conditional permanent resident status and now she suffered depression the reason why, I don't know. The husband now want to file a divorce to my sister. What she can do to remain legal in the US?

Atty Heather said...

Many of the questions I've received on conditional green cards (above posts) reflect the situation where the CLPR holder is facing divorce.

If you have filed a joint 751 petition but you or your spouse has since filed for divorce and the divorce is not yet final by the time of your interview, CIS will issue an RFE giving you an additional 87 days to finalize the divorce and letting you file a waiver (i.e., based on good faith marriage which requires a final divorce decree) without losing status. This reflects a new policy memo that CIS released this year. You are still going to have to show that the marriage was bona fide (a lot of joint documents) and that the marital breakup is not your fault, if you file for the waiver, which is easier said than done unfortunately).

If you file a joint petition and the divorce will not be final within the 87 days (which happens a lot when the other spouse is screwing with you), then you need to consider the other two waiver possibilities: (1) extreme cruelty; or (2) extreme hardship. for more about these waivers and what they entail, visit our website at www.humanrightsattorney.com.

If you have already successfully lifted the condition off of your residency and then get divorced, then this will only impact your naturalization case. You must be living with and in marital union with a US citizen spouse in order to qualify for natz within 3 years of your initial AOS approval date (regardless of whether you had conditional status; look on your green card where it says, "resident since . . ."). If you get divorced, you're not going to be able to do this, and will be likely eligible for naturalization in five years from your initial LPR grant date. The other issue that can arise is during the naturalization interview itself, where CIS can ask you more in- depth about the bona fide nature of the marriage since the divorce happened so quickly after you got your CLPR released. Be prepared to show a lot of joint documentation and substantial, documented reason for the break-up.

Anonymous said...

hello!i have another question:if we've been married for not a even six month,but my green card papers are pending now,and i wanna get a divorce ,should i still wait for my GC?or i just need to give up and go back to my country?Really,i dont wanna go back ,but my husband isnt the person he was when we got married,or when we were dating,he become a complete jerk!yelling,screaming,swearing,he just out of control,and i dont think there is any hope for us..if i had a family i could just go and leave him alone maybe for a while so he could calm down and think about his behaviour,..im so confused i dont know what i can or cant do !i need help!

Anonymous said...

i got married about a year ago and received a conditional residency. a few days ago my husband told me he is gay. I want a divorce but im afraid that if i do get divorced i loose my chances of getting my citinzenship. what can i do?

Anonymous said...

I have been married to a US citizen since 2002. Left him and my marriage in 2008. I am a permanent resident since 2005 (not conditional). We were married in NY city hall. My questions are: Can I file for naturalization based on 5 years residency. Is there a way for me to get information about him and his prior divorce ( I am his 2nd marriage)without him knowing it. Can he still have me deported if I file for naturalization.

Anonymous said...

I am a conditional green card holder and married for 1 year. my husband is abusing the prescription drug He doesn't want me to work or even i buy my own car so that i can drive, and told me if i buy a car or work, i need to move out the house..and he said if i left he will call the immigration and tell them that i defrauded him all i want is money,..eventhough its wrong coz i need a license coz his license is suspended all im doing is in our own good...what should i do i don't want him to get in trouble...

irmayj75 said...

Living in New York...

My Husband and I married in good faith but since then he has moved to New York. The reason why, his brother got sick. We got married in Oct 09 and have filed a joint I-751. I got letter from USCIS stating that your supporting evidence does not establish that you and your spouse entered the marriage in good faith. Since our marriage, we have had to move out of the apartment ( i lost my job and he is disable) and the documents that they (USCIS are asking for, we do not have. I live with my sister and her family and he now lives with his brother. What should we send the USCIS in order to remove his condition? Help please

Anonymous said...

I have just recently gone through the whole immgration process and i am now a US (naturalized) citizen. I have been together with my US husband for 6 years. We have high stress jobs and can't seem to find common ground anymore. We are talking about separating and possibly divorce. Would a pending separation or divorce cause my naturalization to be taken away from me?

Anonymous said...

Hello Heather,
I married my U.S husband on December 13th 2008. I do have my conditional green card which it has been extended one more year while immigration review my petition for removal.My application was received on May 16th 2011. I received a letter from immigration( on Sept. 2011) saying that they will schedule another interview.
Me and my husband did change address after I went to do my fingerprinting and they received the change of address ok. Now my question is: Is it normal to have another interview?, the fact that we changed address may affect the process? I'm a little nervous about it..Any input will be appreciated.
Thanks.!

Anonymous said...

Can I get divorced before it's been 2 years (-90 days) and we can file for removal? If our divorce become final a year before we are suppose to remove conditions can I still stay here until my conditional card expired and then file without him, telling Uscis that we are divorced. The question is, can I stay until it's time to file for removal even though our divorced is finalized? We entered the marriage I good faith

Anonymous said...

My husband is awaiting his green card this year and I am pending appeal of my denial this June. We have been separated for 2 years but still married and with join property. He says that if I lose my appeal he won't claim a green card for me when he gets his card because we are separated. I need to know what the law says about that. thank you very much

Anonymous said...

hi, ive been married for almost 2 years,i entered this married in good faith, but before married we already had accounts together,after 8 months of marriege we decided to apply for my coditional green card, i have my C/ Green card for 8 months, but my spouse always like to step on me, everyday gets worst, we have a life together , dogs, everything, but my spouse fights with me everyday, one day my blood pressure went so hight, plus my heart rate of anxiety, i called the ambulance, i didnt file nothing against her, because i love her, but she supported me for a years when i couldnt work, but keeps rubbing on my face, charging my every 15 days paycheck, and prohibitting me to have friends, she put her parents in the house and i cant invite my own brother for a week that she complains, so everyday theres something that she wants to fight, i dont know what to do, now she keeps threating me talking about divorce, even if she didnt applied for me, i would still never be away from her, but its a every day thing, she disrepects me, by yelling, offending, and humilliating, because she have more money then i do- i have so many pictures of us, tax income of every year, cell phone account together, bank account together, i have alot to prove that im with her because i love her, but she offends me too much, how can i prove that, because i got attach to this life and i dont wanna leave, so what to do if i dont want to loose my green card?

Anonymous said...

same situation.. we are married and living under the same roof. (its real marriage) my green card will expire in 2 months and my husband doesnt want to sign papers what am i going to do? we havent sign or talk about divorce..

please help!

Anonymous said...

"Hello! I'm in love with an immigrant with a conditional green card and who is married. She doesn't want to be in that marriage any more because they have irreconcilable differences. She has been married to him for over 2 years. If deep down she really wants to be with me and I am a US Citizen, what is the best advice you can give her?

5:47 PM"

I am in the same situation as you are, I don't know what to do either. I am in love with a wonderful man that has tried repeatedly to work things out with his USC wife. She is abusive to him, and doesn't treat him with the least bit of respect. He is just now applying for the removal of conditions, but we don't know what to do. He is even willing to be deported, just so long as he can end his marriage. The only reason that he wants to avoid deportation, is to be with me and make our situation easier once he can get divorced. Will he be deported if he divorces her? Will he have to apply under the 5 year rule? I'm a USC, is there anything I can do?

Anonymous said...

hi! i've been married to a u.s citizen and i got my 2 years conditional Green Card.im having a hard time to find a job in the city where we are living and now i wanna leave her here and go to another state to work and go to school. so we gonna have to live separate but staying in mariage.Do u think that that idea is not gonna affect my 2 years conditional GC or will i be able to remove the condition to get a 10 years GC?

Anonymous said...

hi...i really need help ma'am.
im married to an american citizen for 8 months now.we filed for my adjustment of status and waiting for the result now. but we arent getting along.he is abusive.mentally, physically, emotionally and sexually.
i dont wanna go back home. but i want to live away fr him and get a divorce. police were in our house twice. he is depressed too.i cant stand it. whats gonna happen to my status here in US if i live separately to him? pls maam.thank you and godbless.

Atty Heather said...

Consider a conditional green card waiver if your husband or spouse is not willing to sign the conditional green card removal paperwork with you.

If you have already removed the conditional status and have even applied for and received your citizenship, naturalization can be revoked if you lied on the application or committed marriage fraud. Yes, your spouse can always write into CIS and claim that you married him for a green card but if there is no proof of this, CIS usually won't start an investigation after a natz interview, especially for a marriage that has been well documented with joint documents and is long in duration.

These are general conclusions. Always discuss the specifics of your case with an experienced, immigration attorney through a in-depth consultation.

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Anonymous said...

Hello! I'm in love with an immigrant with a conditional green card and who is married. She doesn't want to be in that marriage any more because they have irreconcilable differences. She has been married to him for over 2 years. If deep down she really wants to be with me and I am a US Citizen, what is the best advice you can give her?






I'm in the same boat just pray boo

Elizabeth Builta said...

Hi, I really need your help. Have combed through this whole blog and really didn't see an answer. I moved from the UK to the US and married almost for years ago. I have yet to file for conditional residency due to financial reasons. I am, and I'm sure she would feel the same way, miserable. We entered this as a good faith marriage but it has fallen apart. Can I still receive my conditional residency if we divorce after 4 years of being married?