Question:
“I have an appointment coming up in a few weeks to become a permanent resident. My husband is not living with me. About a month ago, I found out he was seeing another woman. We had a big argument. He moved out. We still talk on the telephone but he won’t tell me where he lives. He does not know if he wants to stay as a married couple. He does not plan to go to the appointment with me. Do I have to drop my case?”
(Submitted by Jennifer A., Rialto, CA)
Answer:
Unless you want to give up, you do not have to drop your case. Depending on the facts of your situation, you might be able to still win a green card through marriage, even though you are living apart from your spouse. I see a few possible options.
Let’s take them one at a time.
First, how likely is it that you may get back and reunite with your husband?
If you and your husband are talking, that seems like a good sign. It could be both of you just need some time to “cool off” a bit. Rather than trying to force him to go with you to the interview now, you could tell the government you need to postpone the upcoming appointment and ask for a new date.
This approach may give you enough time to work out differences with your spouse, and get back together before the date of your rescheduled interview.
On the other hand, if the possibility is slim that you’ll get back with your husband, it is probably better to start looking at other options.
Based on your information, it seems a formal separation or divorce has not been filed by your husband.
If it has, then your efforts to obtain a green card are slimmer. A legal separation or an actual divorce filing will lead to a denial. (A legal separation is a court order and more formal than just a living apart separation.)
Second, in time, will your husband go with you to explain the marital situation?
You could go alone to the interview and explain the situation. I suggest, if you take this approach, that you consult with a permanent residence attorney in advance.
You will have to convince USCIS that your marriage is a valid marriage and ask for more time to return with your husband.
This is not an approach I recommend. Especially if your I-130 petition has not been granted yet.
Submitting a request for a new date in writing is more likely to be granted.
Do not risk denial of your spousal petition by attending a USCIS interview while the two of you are in an argumentive phase.
Quarreling couples should not attend their interview, unless they have reached a mutual truce. Otherwise, disaster is a strong possibility.
After a new date is granted, and some cooling off takes place, perhaps your husband will appear with you and openly admit your marriage difficulties.
I consider this a better solution to your current circumstances.
This is a tough way to win, however, so you need to be extra thorough when you prepare.
The reason immigration officials want both parties at the interview is to ensure you have a real marriage, not simply a financial arrangement for you to obtain a green card.
As a result, separation does not automatically lead to a denial of your permanent residence application.
BATARA IMMIGRATION LAW INSIGHTS
What Every Immigrant Needs To Know About Hostile Divorce Cases
You should be candid with the interviewing officer. Since you have marital problems, be open to talking about the causes and the actions you and your husband are taking to deal with them.
Let’s say you’re going through marriage counseling. This is good information to share with USCIS because it is a sign that yours is a real, though troubled, marriage.
In addition, how long have you been married? If you have been married for 3 or 4 years, or longer, you should have a good deal of proof that your marriage is valid, even if you are separated.
Do you and your spouse have children? This, too, is solid proof of a bona fide marriage relationship.
Still, the government will ask you for documents showing that you and your husband have acted like a “normal” couple.
For instance, what do you own, or owe, in your names together? Do you have joint bank accounts? Are the home bills, like gas and electricity, telephone, water, or trash, in both names? How about the rent or mortgage contract?
Since you are living apart, maybe you do not have such evidence of joint ownership at present. On the other hand, if you and your husband are still sharing the burden of paying for certain items together, or still have joint bank accounts, this is good evidence of a bona fide marriage.
If your marriage has been short, less than a year, and you have no children together, it will be much harder to succeed. If you are in this situation – even if your spouse plans to go to the marriage green card interview – you probably need help from a qualified immigration lawyer.
In short, although you and your husband are living separately, you could still pass your permanent residence marriage interview with flying colors.
Third, you haven’t mentioned it, but reading through the lines, I wonder if you’ve been “victimized” by your husband?
If your husband has been extremely cruel to you, with or without physical violence, you might want to look into the Violence Against Women Act program.
Perhaps has been verbally and mentally abusive towards you, especially if he was seeing another person behind your back.
Did he restrict your access to bank accounts, credit cards payments, and the mail? Did he try to prohibit you from visiting your friends or family members?
If actions like these were taking place, you might be eligible for permanent residency under VAWA.
VAWA allows immigrant females to file a petition on their own, without their husband’s permission, to obtain green card status. But be forewarned. This is another situation where you should not try to win your case on your own.
Whatever you do, do not make anything up which is not true. This will make matters worse and almost certainly lead to your deportation.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Green Cards And Permanent Residence Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
