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Can A Separated Spouse Remove Two-Year Green Card Conditions?

QUESTIONS AND ANSWERS

My Spouse And I Separated Before My Two-Year Residency Expired.
I Entered On A Fiancée Visa. Do I Have To Return Home?

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Question:

“My husband helped bring me to the United States through a fiancée visa. We got married. I got a green card for two years. They told us to go back for a new interview in two years. But after living together, we found out things about each other we did not like. He filed for a divorce. I moved with my aunt who lives in Fontana. What can I do? Do I have to go back home?”

(Submitted by Margarita Q., Beaumont, CA)

Answer:

You are facing what is known as removing the conditions of your temporary residency status. The government does this to make sure short-term marriages are not based on fraud.

The rule is that if your spouse filed papers to immigrate you, but you were married for less than two years at the time of your approval for residency, your green card status is only good for two years.

During those two years, as you probably know, you have the same rights of a regular permanent resident. You can work, go to school, and even travel outside the country.

Before your second year of legal residency ends, you must file a Petition To Remove Conditions, Form I-751, along with new documents. The goal is to remove the two year limit and obtain a 10-year green card. Your residency status, in short, becomes permanent.

Now, let’s talk about your current situation.

Don’t think just because you’re getting a divorce, immigration officials will assume your marriage is a fraud. Of course, it will be harder to prove your marriage was a valid marriage, but it can be done.

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If your husband is still alive, you may want to talk to him about helping you. Many couples cooperate with each other even after they separate and divorce.

The regulations state you and your husband are supposed to file to remove the conditions as a couple. There are three exceptions.

Here are the exceptions and some problems that might pop up.

First, were you a victim of domestic violence?

If you were, I don’t think your husband will help you.

Over the past year, the government has become stricter about evidence to prove your marriage broke up due to domestic violence.

If there was physical violence, you should try to obtain medical proof. Maybe there are police records, too. Perhaps you went to court to get a restraining order.

This may not be enough. I’d recommend getting the statements of family members, friends, neighbors who witnessed any of the violence.

To show domestic violence, however, the abuse does not have to be physical. Mental and psychological mistreatment also counts.

Second, will you suffer an extreme hardship if you have to go back to your country?

This is very hard to prove.

Demonstrating hardship is complicated in any type of immigration case. Since you arrived on a fiancée visa about two years ago, a short period of time, it will be more difficult to win your case based on a hardship claim than in a long-term marriage.

I am not saying it is impossible.

For instance, did you and your husband have any children together?

What was your home environment like before you came to the U.S. and what have you done to help your relatives living abroad? How will losing this ability affect your mental and physical health?

These concerns are only a starting point.

They barely scratch the surface of what hardship includes. Generally speaking, hardship is not an issue immigrants should try to prove without the help of a professional trained to address such issues.

Third, are you divorced?

You are allowed to file alone if you are divorced. Your divorce must be finished by the time you apply to remove the conditions.

Being separated or in the middle of a divorce is not sufficient.

In California it usually takes at least six months to obtain a final divorce judgment. You need to have the divorce completed before filing your papers to remove the conditions.

As you can note, each of the exceptions allowing you to file alone has potential pitfalls.

If you have any of these problems, I suggest you talk to an immigration permanent residence attorney before trying to handle things on your own.

You should not take chances on losing your right to live, work, and go to school to the U.S. You may never get a second opportunity later in life.

You will lose your green card status if your application to remove your residency conditions is denied.

It is far better to have someone trained in permanent residency law guide you, to assist you in putting together your best possible case.

By Carlos A. Batara

(Filed Under Q&As: Green Cards And Permanent Residence)

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