Article in the Orange County Lawyer Magazine, discussing conditional green cards and options for immigrants who are separated from or divorcing their spouse.
- 1. The QuickestWayI to a GreenCard is Nard,--ThanYouMarrying a U.S. citizen has tradi-tionally been the quickestroute to U.S.permanent residency (mostcommonlyreferred to as having a "green card).Even now, despitethe crackdownon sham mar-riagesentered intoin the 1980sandearly 19905,immigration attorneys receive calls to this dayfrom people openly admitting they married toobtain a green card and money exchangedhands as if its common practice and easy to getaround.Thepenaltiesformarriagefraud,if aper-son is caught,aresteep,includinga possiblefive-year jail Sentence, a $250,000fine and, perhapsthe worst consequencefor an immigrant, a life-time bar to ever receiving a family or marriage-based immigrantvisa thatcouldotherwiselead toa greencard. (8USC 31325(c),IrnrnigrahonandNationality Act 275(c); 18 USC $9371, 1001, ,1546.) For many, though, the benefits of this 1arrangementstilloutweigh the risk Workingille-gally as a bar to receiving a green card does notapplywhen an immigrantismarried toa U.S.cit-izen spouse sponsoring him or her for a greencad (INA 245(c).) Overstaying a visa and thenresidingillegallyin theU.S.without lawfulimrni-@on status is forgiven when an immigrant ismarriedtoa US,citizenspousesponsoringhim orher for a green card. (INA 9212(a)(6)(A).)In 1986,Congresspassed the ImmigrationMarriage Fraud Amendments (IMFA),based onthepremisethatthesurestwaytocounteractanddetect fraudulentmarriagesentered into for thesolebenefit of obtaininga greencardwas topri-marily test the longevity of the relationship.(Immigration Marriage Fraud AmendmentsAct 1,,of 1986 (Pub. L. 99-639, 100 Stat. 3533.) Thislaw, which amended the Immigration and 1 1Nationality Act, established the "conditional"green card. Now, consuls abroad and U.S.Citizenship and Immigration Services ("CIS"),formerly known as INS inside the U.S., issue"green cards for only two years. These condi-18 ORANGE COUNT1 UdxWYER
2. tional green cards are issued to an immigrantwhose marriageto a U.S. citizen is lessthan twoyears old at the time the green card case isapproved. This conditional status is usuallygranted at the green card interview in front ofthespousesorsubsequently,if a decisioncannotbe made at the interviewdueto apendingback-groundcheck or other issuewith thefile.This "conditional green card" will expiretwo years after the initial permanent residencystatuswas approved if, in most cases, thecouplecannotprovethat they arestill livingtogether ashusband and wife at the end of that two-yearperiod. The immigrant has a 90-day windowimmediatelyprior to the permanent residencysexpirationto filewith theirspouseto removetheconditional basis of residence. If this window is,missed, permanent residency expires, will bedficidy terminated,and the immigrantspousewill be subjectto deportation.Usually, the immigrant spouses goal is tokeep their green card by timelyfiling to removethecondition and make their residency perma-nent. In rarecases,immigrantspousesjust leavethe U.S. after their green cardexpires,abandon-ing their residency.The immigrantwill have tostart all overas a temporary, nonimmigrantvisa1holder,in mostcircumstances,and apply for re-entry into the U.S. at a later point. This may bemore difficult to accomplish, requiring theimmigrantspouseto convincea consularofficerandportof entry officerthat, although shewasa formerlawfulpermanentresident and lived inthe U.S., she has no current intent to "moveback" to theU.S. by tryingto qualifyfor,orenterthe U.S.with, a temporaryvisa.A "permanent" green card is valid for tenyears,iseasilyrenewable and,once issued, is nolongeraffectedby thesplitof thepartiesthroughdivorce or death of the petitioning U.S. citizenspouse. Unconditional lawful permanent resi-dencyisnot U.S,citizenshipbut itdoesallowtheimmigranttolivein the U.S.fortherestof hisorher lifeunless the card is abandonedby movingoutside of the U.S. or the immigrantisdeportedfor,in most situations,criminalacts.Oops. ForgottoPile!A common problem occurs when theimmigrant and/or their spouseforget about theexpiration of the green card and lawful perma-nent residencyis terminated.With an expired card, the immigrant willhaveno legalproof fortheiremployerthatsheorhe still has the legal right to work The immi-grantwill also have no proof that he or shehasa rightto re-enter the U.S. if the immigranttrav-els abroad with an expired green card. Thisproblem trickles down into every facet of theimmigrants life on paper including making itimpossible to renew a drivers license, profes-sional license, and to obtain credit. This prob-lem also places the immigrant in a vulnerablepositionwith a controllingorabusivespouse.Animmigrant without legal status loses leverageand position in custody and alimony negotia-tions in divorce proceedings. The immigrantspouse,who isoftenworried aboutbeing deport-edbecausetheotherspousewill not cooperateinfiling the joint petition, is o h n forced to sign"contracts" with their spouse. Commonly,through such contracts, the immigrant spouse,who may not know of the waiver option as analternativeto the joint petition, will sign over ajointly owned auto and an existing joint housedeed to the sole property of the U.S. citiinspouse,to achievetheir spouses compliance..The statute allows an immigrant to file torelease the condition on their green card byeither joint petition orwaiver even if the immi-grant files "late," which is after the 90-day win-Benefitsof the UC lrvine ExtensionParalegal Program:W ABA-approvedW Opportunity to become part of a legal servicesdelivery teamOutstandingreputationfor practice-basededucationW Expert instructors representinglaw firms,corporations,and public sector agenciesW Internships& job postingsavailableMake a Difference. Become a Paralegal. 3. . dow before the two-year conditional residencyexpires.The joint petition or waiver may be filedevenwhenCIShas alreadyaffirmativelyterminat-ed the immigrants permanent residency. Animmigrantmusthave "goodcause" forfilinglate,however. "Good cause" is a term that is undefinedin thestatuteorcaselaw. (8CFR 216.4(a)(6).)Inpractice, the shorter the time between the expira-tion of the green card and the filingof thewaiveror joint petition, the more likely CIS will excusethe late filing.Documentingthe reasons that ledto the late filing (e,g,,familyemergency,medicalcrisis, a move to a new city, upheaval at work)greatly improvesthe chances tdat CISwill acceptthe case. The petition must, however, be filedbefore the Immigration Court assumes jurisdic-tion over the immigrant, which occurswhen theclientisservedwith a "Notice to Appear" ("NTA")before an immigration judge for the comrnence-ment of removal p d n g s (2 e.,deportation).When this will happen remains a gamble for theimmigrantwho never knowswhen an NTAwillbeissued;thiseventcan occur assoon as threetosixmonthsafterthecards expiration,andsometimesnot at all.Oncethe CISsendsanoticetotheimmigrantthat hisorherpetitionhas been received (calleda"receiptnotice"), the immigrantsunlawfulstatussincethedatehisor her greencardexpiredwillbebackdated to the date of expiration,returning theimmigrant to lawful immigrant status. And thisbackdating occurs even if the petition was filedlate. Further, the receipt notice itself provides theimmigrantwithproof that hisorher green cardisstill valid for another year or until the case isdecided, whichever comes first. If the case is stillnot hided within a year, the green card will beextendedfor anotheryear andwill continue to beextended annually until the case is decided.Currently,the averageprocessing time for the LmAngela CIS Field Office,whichoverseesthe SantaAna sub-office,to issue a decision in a joint peti-tion or waiver case ranges from one to eightmonths.WhentheMarriageMhApartEven if the couple is experimentingwith atrial separationbutneither has filedfordivorce,itmay bepossibletocontinuewith the joint petitionif there is hope for reconciliation. In this situa-tion, it is much more likely that the couple willhave to interview again with CIS to verii thebow& natureof the relationship,especially ifseparation happened withii the first six monthsJULY 2007after the immigrants initial green card wasapproved. The more common occurrenceimmigration attorneys face, especially giventhe divorce rate in thisstate,is that the couplehas no intent to reconcile and usually one ofthespouseshas alreadyfiledfor divorce.Marriages that are on the rocks as thetwo-yearexpirationdateapproachescan great-ly interferewith the immigrants desire to keeptheir permanent residency. Even ifa marriagewas initiallyenteredintofor "love," but isnowleading to divorce due to domestic violence,adultery, or other "irreconcilable differences"near the t i e the immigrants green card isaboutto expire, a joint petition may not be fea-sibleby the time the greencardexpires.In mostcases, requiring the cooperation of the petition-ing U.S. citizen to sign and file to have the con-ditionremovedcreatesapower-strugglebetweena feudingcouple and,worse, gives a potentiallyor alreadyabusiveU.S.citizenspouseevenmorepower and leverageover the immigrant.There are limited exceptions available toan immigrantspousewhen his or her U.S. citi-zen spousewill not cooperate in filing to havethe conditionremoved from the greencard. If a 4. coupleseparatesordivorcesat anytime afterthegreen card is first issued, it is unlikely that theoriginally sponsoring U.S. citizen, or "lawfulpermanent resident," spouse will cooperate inhelping the immigrantspousefor a number ofreasons. If this happens, it may be possible forthe immigrantspouseto applyto have the con-dition removedfrom his or her own green cardby applying for a "waiver." The waiver allowstheimmigrantto applyto removetheconditionon his or her green card without the assistance,and sometimeseven without the knowledge, oftheir U.S. citizen spouse. The other benefit,applicable to each of the three grounds for awaiver, isthat thewaivermay be filedbeforethe90day expiration of the immigran