Thursday, October 19, 2006

Couple Still Together but Green Card Expired

Section 216 of the Immigration and Nationality Act creates a system where immigrants who have attained their conditional permanent residency are granted a green card for two years. Within 90 days of the two-year anniversary of the initial grant of conditional status, i.e. a green card, the immigrant and the immigrant's spouse must file with CIS a joint petition to remove the conditions on residency along with documents to prove that the marriage was not entered into for the purpose of evading the immigration laws in the United States. If the service approves the joint petition, it lifts the condition on the immigrant's residency status and the immigrant will receive a permanent green card valid for 10 years.

If a couple fails to file within this 90-day period, then CIS will terminate conditional residency status and will issue a notice to appear, a charging document that says that the immigrant has been referred to an immigration judge for removal proceedings.

If the immigrant fails to file a joint petition or even an application for waiver of a joint petition after the expiration of the conditional residency status, the immigrant's filing can still be accepted late if the immigrant can show "good cause" for the late filing. "Good cause" is not defined by law and is up to the discretion of the CIS officer whether or not there is cause for allowing a late filing. Therefore, it is always advisable that a very strong reason that is well documented is made to request the late filing beyond the 90-day period. The later the filing usually the more difficult the case will be to have its allowed to be filed. As opposed to a filing that is made during the 90-day period, a filing made days and weeks or even years after the expiration of conditional status will have to have with it a large volume of sufficient evidence to show that there is absolutely no question as to the bona fide nature of the marriage.

If the petition is never filed or even if filed late, the immigrant will begin to accrue unlawful presence. However if CIS accepts a late filed petition, the unlawful presence terminates and the conditional resident status will retroactively become authorized.

VAWA green card cases & illegal entries

The National Network to End Violence Against Immigrant Women and the National Immigration Project are considering litigation to challenge the unlawful denial of VAWA (abuse-based immigration green card) applications for applicants who are present without being admitted or paroled (Entered illegally).

The problem lies in two contradictory sections of the law. Pursuant to INA § 245(a), VAWA self-petitioners are eligible to adjust regardless of their manner of entry (so, even someone who entered illegally is still able to receive a green card despite kind of entry). Some CIS (U.S. Citizenship & Immigration Services) district offices have denied VAWA green card applications for people inadmissible under INA § 212(a)(6)(A)(i), who entered illegally, unless the entry was connected to the abuse.

While lawyers in the Network work on the lawsuit, in the meantime to win these cases, it's important to take note that there is no definition of "connected to" the abuse. This can mean, for example, that a batterer convinced the immigrant victim that it was "ok" to leave and re-enter the country, threatened the immigrant victim or her children emotionally, financially, or physically in such a way that caused her to re-enter illegally so she could return right away to the U.S. It could also be construed as emotional manipulating the immigrant victim as part of the cycle of control and violence by convincing her to re-enter the U.S. (knowing the only way she could was unlawfully), pretending that he would never hurt her again and that their marriage would be peaceful again, only to harm her again when she returned.