Warning! Filing Good faith marriage conditional green card waivers late increase odds of denial

“Help! My conditional green card expired over a year ago and I’ve been separated from my spouse and I don’t know what to do.”  I hear this a lot. 

If you are separated and you have a conditional green card, you can still file a waiver petition late (after the expiration of your two year card) even if you received a letter from CIS terminating your residency.  You can even file late from outside of the US (but it may be difficult to re-enter the US until you receive an approval). So how late is too late? I had one case that was 4 years late and we were still able to get it approved, but it was based on extreme cruelty – which arguably there are more extenuating circumstances to explain the drastic display (fear of spouse, in hiding, etc.).  There is no set time period that cuts off your ability to file a conditional green card waiver based on good faith marriage or on any I-751 waiver ground.

• The difficulty you will run into is finding all the documents needed to prove the initial marriage was bona fide from an immigration perspective; the longer you wait, the more outdated the financial records, pictures, and other documents become and usually the more difficult to track down. 

• You also need a reasonable, documentable excuse for the late filing – you can’t just file late and hope for the best and you must affirmatively request acceptance of the late filing with your excuse. The more documentation you can provide for that late filing, the better (did you lose your job, move multiple locations, outside the US for a relative’s illness, did you suffer a dramatic loss of a loved one, get injured? Incarcerated (hope not!)? 

Often, a good faith waiver or a I-751 joint petition has been denied and the immigrant never left the US after receiving the denial notice and despite being told that residency has been terminated and the immigrant is subject to removal and accrual of unlawful presence.  Even in this situation, it may be possible to file late – on the same or a different waiver ground or even with a new joint I-751 filing. If it’s on the same ground, be careful because CIS will compare your old filing against the new one – so get some new arguments or evidence that wasn't accessible before (and document that) to obtain a better chance of denial. 

The ultimate catch 22 is that the longer you wait after a denial to refile will give you potentially more time to document your case but also it also runs into the problems of being at risk for removal because you are out of status. Right now, there has only been one court case where the judge held that filing a subsequent waiver or joint petition after a denial does not actually place the immigrant back into valid immigration status for purposes of unlawful presence accrual if the petition is later denied again. Only the initial I-751 filing filed late can do this according to the court. Always consult an attorney about the latest policy on this before you go forward with a late filing where you have had a waiver or joint filing denied previously. 

Hedging your bets? Filing different family immigrant visas at the same time

It is possible to have more than one type of Immigrant Visa petition filed by a family member for the same person pending at the same time. Huh, you say? The filing of one immigrant visa petition does not invalidate or stop the other from being processed by USCIS assuming it's not the same type of immigrant visa petition filed by the same family member (i.e., you can't have one I-130 filed by your spouse and then file another one from the same spouse while the other is still pending or hasn't been terminated by USCIS or the National Visa Center (US Dept of State) due to failure to respond to NVC documentation requests). But you may be able to file an I-130 visa petition by a lawful permanent resident spouse while at the same time have an I-130 filed for the immigrant by their US citizen sister or brother. But why would someone do this? It’s double the fees, double the pain of assembling documentation and just more work.

It all comes down to processing times and that visa bulletin backlog of visa numbers that can fluctuate widely depending on what category your immigrant visa petition falls into.  For example:

As a US citizen, you may want to sponsor your parent for an Immigrant Visa. Five years ago, your uncle, also a US citizen, may have filed an Immigrant visa petition for your parent, your uncle’s sister.  Even if the uncle’s Immigrant Visa petition was approved, it may be faster to apply for your mom on a separate Immigrant Visa petition based on your parent-child relationship now that you are a US citizen, since parents of US citizens are not subject to the visa bulletin’s waiting periods for available visa numbers.

But another consideration is your parent’s immigration history and visa entries. If your mother has been in the US on an expired visitor’s visa for any period of time, she is ineligible to apply for a green card in the US based on your uncle’s petition because she is not an immediate relative (a parent, child, or spouse of a US citizen) for purposes of that petition, the only type of relative where unlawful presence is forgiven. For example, if your uncle’s Immigrant Visa petition for your mom’s case was now current and she even has a consulate interview scheduled to interview for her green card, it may be better to instead file a separate Immigrant visa case based on your sponsorship, thereby classifying her as an immediate relative so she can apply for adjustment of status in the US and not leave the US.

This is especially crucial if she has overstayed her visitor’s visa I-94 authorized stay by 1 year or longer and then leaves the US; by leaving the US, she would trigger the 10 year bar and may be stuck outside the US without a qualifying relative for the waiver (US citizen children are not qualifying relatives for the 10 year bar waiver!).  This example shows that processing speed is not always the most important priority in assessing which Immigrant Visa petition is the right one in any particular circumstances. 

Tips for Surviving Your Marriage Green Card Interview

The marriage green card interview can be extremely intimidating process. You have a lot on the line, your future together, the ongoing ability of your spouse to work and stay in the US, and you can have little notice from CIS to prepare for it (averaging 7-30 days depending on the work load of the CIS office where you live and where your case is assigned). Remember throughout this process that you have rights and options:

•      You can reschedule your interview at least once if you cannot make it for work, health or other unavoidable obligations and can document that. You must obviously inform immigration by at least sending back the interview notice via certified mail before your interview with the rescheduling request to prove the request.

•       You have the right to have an attorney present at your green card interview. This is not required, but always advisable if you can afford it. Remember thought that not all immigration attorneys are the same; thoroughly interview and vet your attorney to make sure they understand the amount of documentation your have, can help you counter any challenges your case may have, and prepare you for what’s to come.

      If you are one of those couples that get invited back for a second interview (which can happen more if you appeared without an experienced attorney the first time since you likely did not know what documentation to provide the first time around), again it is wise to bring an experienced immigration attorney with you and it can be truly critical to do so at this stage. Usually couples are separated on the second interview, and asked a series of questions and the officer compares the couple’s answers. This interview is referred to as a “Stokes” interview and is usually conducted for suspected marriage fraud. Having an attorney present helps because this person, first and foremost, acts as a witness to what is happening so it’s not just your word against the officer’s. 

And, if you have a second interview, the officer is already questioning the bona fide nature of your relationship and is skeptical of your marriage. 

      This could be your last chance to refute any derogatory or questionable documentation or answers, especially if a notice of intent to deny is not issued, a step that CIS can skip altogether.  A competent attorney can also ask for a supervisor or cut off an interview if inappropriate questioning occurs, which is so hard to tell when a couple goes into an interview alone, worried about where that line is. Is it ok to ask about the couple’s sex life? How much personal information can the officer ask about? How long should the interview, itself, be before a supervisor is brought in? How are officers allowed to talk to you? 

An experienced attorney can also help clarify any legal issues or counter the officer if the officer is asking for documentation that is not required for an approval or may be particularly singling out one type of evidence and discounting all others. 

•             If CIS claims that your session is being videotaped and later issues a denial relying on your testimony during the interview, you have a right to see that video tape.

•      You do not have to submit all joint documentation of financial accounts you may have together; this is up to you. If the officer asks for a particular piece of information or documentation such as health insurance, which you wish to keep private or do not have, you have a right to not offer it.

•      You have the right to remain silent! Do not spill your guts. The officer may seem friendly and talkative. Many are great people. Don’t let down your guard. Ever heard of a person fishing for information? The officers are looking for signs of fraud and even if you think your case is easy and clean, you never know how an officer will interpret your comments. The more relaxed you feel, the likely more talkative you will become in your interview. Remember to listen exactly for what is being asked of you. Do not elaborate or go off on a tangent that you may not be prepared to answer questions that lead from that tangent. A competent attorney’s goal is to get you in an out of that interview as soon as possible with just the necessary information the officer needs. Green card interviews should generally not last more than 20 minutes.    

Your Spouse Withdrew Your I-130 but Now You're Back Together: What Now?

Sometimes a spouse can get angry or make a rash decision such as withdrawing the I-130, Immigrant Visa petition based on marriage, for the immigrant spouse. So what happens when to your immigration case if all is forgiven and you're back together? 

Once an Immigrant visa is withdrawn, it is denied and there is no way to “reinstate” it. A new Immigrant visa petition or I-130 application with fee must be filed with USCIS. You do not get to skip ahead of other couples in the processing time with the Service Center either because you had an I-130 before.  If you do file a new I-130, remember, this petition remains active at the whim of the petitioning US citizen or LPR spouse; the immigrant can’t stop a withdrawal from happening by their spouse.

Also, your interview will be tougher at any new green card interview based on the new I-130 filing, CIS now curious why the first marriage did not last and whether this one is viable, although legally viability is not a ground for a denial of the petition. But in reality, CIS officers will be skeptical of the couple and will review your joint documentation and reasons for separation closely. Adjustment of Status, the green card application that is usually attached to the I-130, is a discretionary petition, that can be denied by an officer if the officer believes that the immigrant’s actions led to the first withdrawal (cheating on the other spouse, for instance) and unless you can show rehabilitation, the I-130 may still be approved but the immigrant may have to consular process (instead of benefit from adjustment in the US) if the adjustment application is denied based on discretion. Be careful when you re-file an I-130 that you can trust what your spouse is going to say at that subsequent green card interview as to why the case was withdrawn the first time around and whether you can trust your spouse through the process.

Similarly, if you get divorced while your I-130 is pending with USCIS, your I-130 will be denied when CIS discovers the divorce or at the green card interview when CIS is made aware of the divorce when it is disclosed. The I-485  (green card application) and I-765 (work permit) applications will also be denied. CIS won’t grant a marriage-based immigrant visa petition if the parties are divorced.

If you successfully submitted our I-130, paid the Immigration Visa fee, and submitted original documents to NVC including the Affidavit of Support for purposes of consular processing,  but have yet to submit the DS-230 with former spouse information and you were divorced during some part of your immigrant visa processing stage before the consulate interview to decide the Immigrant Visa based on the marriage instead of applying for adjustment of status, your only hope of saving the I-130 is proving that the divorce you obtained was invalid under the state law where you obtained it.

This may be a much more viable argument if you obtained a quickie divorce abroad in a foreign country where you no longer reside and where your spouse no longer resides or have done the same in another state that may not have jurisdiction over your divorce based on residency requirements that may be imposed in that state or your home state that may require you to submit to the jurisdiction of its family code. This is obviously as complicated as it sounds; talk to an experienced divorce attorney in the state or country where you obtained your divorce as well as an experienced divorce attorney in the US state where you regularly reside to determine if you can find a way to invalidate the divorce or provide CIS proof with the state’s non-recognition of the divorce for immigration purposes. Otherwise, you will have to start over with a new I-130 immigrant visa petition, start over with processing times (often up a year once the process is started) at CIS and NVC, and re-pay CIS and Department of State NVC fees.