Three Ways to Keep Your Green Card If Your Marriage Falls Apart

If an immigrant has been married less than 2 years when the immigrant is granted lawful permanent resident status, the immigrant will receive permanent resident status on a "conditional" basis.

The usual rules:

* The immigrant spouse's green card will only be valid for 2 years, not 10. To convert 2 years into 10, the U.S. citizen or legal permanent resident-sponsoring spouse and the conditional green card-holding immigrant spouse must together petition to have the condition removed, or else the card will expire and lawful permanent residency status terminates.

* This petition must be filed within the 3 month period before the card expires.

Why the extra requirements?

Conditions are placed on lawful permanent residency status because the government believes that many marriages are entered into strictly for the purpose of obtaining a green card, not for love or any other reason. In order to cut down on the number of fraudulent marriages, Congress put a 2 year limit on green cards issued to spouses in marriages that were less than 2 years old.

This strategy also may help ensure that the marriages are more likely to have been entered into for legitimate reasons because the couple must still prove to CIS that they are living as husband and wife two years after the noncitizen first receives his or her green card. The couple will need to file additional paperwork with CIS with supporting documentation of the marriage, and potentially interview again with a CIS officer, all to have the conditional nature of the green card removed.

If a couple separates or divorces after the green card is first issued, it is unlikely that the originally sponsoring U.S. citizen or LPR spouse will cooperate in helping the noncitizen spouse get the condition removed from the green card. In this instance, the noncitizen may be able to have the condition removed from his or her own green card by applying for a waiver, which allows the immigrant to remove the condition on his or her green card without the assistance of their spouse.

* good faith marriage ground (if your divorce is final at the time of filing);

* extreme hardship (to the alien if deported to their original country);

* or extreme cruelty (proving that the noncitizen alien received physical, emotional, or financial abuse from their spouse)

CIS allows an immigrant to apply for any number of these grounds on the same petition. Waivers are generally more difficult to get approved and many district offices require an interview of the immigrant spouse for the case to be approved.

In the event of an interview, it is always best practice for immigrants to hire an experienced immigration attorney to prepare them before the interview and hopefully represent them at the interview, itself. An experienced attorney can advise on what documents will be necessary but also what kind of questions could be asked and generally, what to expect at the interview. This is also the key time to discuss any potential issues that either the Attorney or the couple or waiver filer wishes to discuss before the interview.

Which Waiver is Right for You? Advantages and Disadvantages of The Different Waivers

There are pros and cons with each type of waiver. For example, the good faith marriage waiver requires that the divorce be final before filing. This could create a long wait if time is a concern, especially if one is just contemplating divorce If a person is in a state like California, a 6 month waiting period is required before any filed divorce is final. If the green card has already expired, that may seem like an eternity to wait.

The extreme cruelty waiver can be difficult to document in some cases because you must prove you were in a bona fide marriage but also being abused. Abuse can be physical, emotional, psychological, or financial or any combination of those. A common problem is that many immigrants do not realize that what is happening is actually abusive. The benefit of filing an extreme cruelty waiver and receiving an approval is that unlike the other two waivers, you will be eligible for US citizenship 3 years after your original conditional green card was issued, instead of 5. If US citizenship is important to you (most cases it is especially for people who want to sponsor parents, spouses and children under 21), then this waiver is definitely worth considering.

The extreme hardship waiver can be difficult to obtain depending on the country where the immigrant is from, the age of the immigrant, how long they've been in the US, their employment and economic situation if deported, and other factors. These are generally challenging cases to get approved and must be very well documented.

Green Card Expiration and Waivers

The green card will be lost if the immigrant fails to file within this period unless the person files a waiver petition. A waiver may be filed even after expiration of a green card and even before the 90 day standard filing period. Once a CIS receipt notice is received from CIS, the person will have proof that the green card is still valid for another year or until the case is decided, whichever comes first. If the case is still not decided within a year, the green card will be extended for another year and will be extended on an annual basis until the case is decided.

*Warning - This is a more complicated area of immigration law. Always consult an experienced immigration attorney to determine what options may be available to you.

Attorney Heather L. Poole practices family-based U.S. immigration law in Pasadena, California. She is a published immigration author and supervises abuse-based immigration cases at the Los Angeles Commission on Assaults Against Women. She is an active resource to the “Violence Against Women experts” list of the National Lawyers Guild, the National Network to End Violence Against Immigrant Women, and the National Domestic Violence Hotline. She can be reached at 626.432.4550 or heather@humanrightsattorney.com. For more information on the options available to abused immigrants, access www.humanrightsattorney.com.