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How a Divorce Can Hurt Your Immigration Case

Tushar Mathur — Wed, 05 Jan 2011 15:09:00 +0000

Three of the most common times when a divorce can negatively impact a person’s immigration case are: (1) when someone is waiting for their green card (a.k.a. applying to adjust their status); (2) when someone is trying to change a conditional residence status to permanent residence status; and (3) when someone is waiting on their naturalization (citizenship) application.

First, if an immigrant is married to a U.S. citizen and applies for a green card, but divorces the U.S. citizen before the green card is approved, the immigrant will no longer be eligible for a green card. The only exception is when the U.S. citizen spouse was abusive.

Second, as you may know, if an immigrant obtains a green card based on a marriage to a U.S. citizen, and that marriage occurred within the last two years, the green card is conditional and expires after two years. In order to remove the condition, the immigrant and the U.S. citizen spouse must file a petition (Form I-751) within 90 days before the card expires. (The petition must be accompanied by supporting documentation showing that the marriage is not a sham. USCIS will either: approve the petition; request additional evidence; refer the case for an interview; or, deny the petition and refer it to an Immigration Judge.) The petition must be filed jointly; however, if the couple is divorced, the immigrant will file the petition him or herself and seek a waiver of the joint filing requirement, which is only granted if: (a) the marriage was entered into in good faith but was legally terminated; (b) the immigrant’s deportation would cause the immigrant extreme hardship beyond the normal hardship of someone who is deported; or, (c) the marriage was entered into in good faith but the immigrant was abused by the U.S. spouse.

If you are applying for a waiver it is highly recommended that you hire an immigration attorney since this is not a routine application but rather it requires submitting substantial documentary evidence. It is also important to note that the couple can still file the petition jointly if they are separated or their divorce is not yet finalized. But, if the couple files a joint petition and their divorce is finalized before the USCIS has rendered a decision then the petition will be denied and the immigrant will have to file a new petition with a waiver request.

Third, divorce can negatively affect an immigrant trying to naturalize based on a U.S. citizen spouse. For example, in a recent California federal district court case, the plaintiff had applied for naturalization based on his U.S. citizen wife after he had been a lawful permanent resident for three years. However, while his naturalization application was pending, the plaintiff divorced his wife. The court found that the plaintiff was not eligible for naturalization because as a result of the divorce, the 5-year residency requirement for naturalization applied instead of the 3-year residency requirement after becoming a lawful permanent resident. Alenazi v. USCIS No. 09-cv-2053 (S.D. Cal. October 12, 2010).

As you can see, the timing of a divorce can have real consequences in immigration proceedings, which are best dealt with by planning ahead and consulting with a knowledgeable immigration attorney.

Seattle Immigration Lawyer | The Marriage Route to Getting a Green Card, Continued – Living Abroad and Married to U.S. Citizen

Tushar Mathur — Wed, 29 Sep 2010 04:13:00 +0000

In the case of an immigrant living abroad who is married to a U.S. citizen there are two possible routes to getting a green card. First, the traditional method is for the U.S. citizen spouse to file the visa petition (I-130) with USCIS. Assuming USCIS approves the petition, the immigrant will go through consular processing abroad. Hopefully, the immigrant spouse will be approved for the visa, which he or she must use within 6 months to go to the U.S. and claim permanent residence, or conditional residence. This process typically takes at least a year.

Second, there is an alternative, more expensive option that is sometimes faster, depending on the speed of the particular USCIS processing office. (You should consult with an immigration attorney in making this decision.) The U.S. citizen spouse can send in the visa petition to USCIS and once he or she receives a receipt notice from USCIS, the U.S. citizen spouse can file a separate fiancé visa petition (Form I-129F). Yes, you read that right. A fiancé visa petition, even though you are already married. Once USCIS approves the fiancé petition, the immigrant spouse then proceeds through the consular processing system abroad. At the consular interview, the consulate will hopefully approve the immigrant for a fiancé visa (K-3). The immigrant spouse can travel to the U.S. using the K-3 and once in the U.S. can file for adjustment of status with USCIS. Following what will be at least several months of waiting, both spouses will attend an interview and hopefully the immigrant will be approved for permanent residence. Whichever route you decide to take, an experienced immigration lawyer can guide you through the process and minimize administrative delays.

Stay tuned for my next article, which will cover how to obtain a green card for an immigrant living in the U.S. who is married to a U.S. LPR, and for an immigrant living abroad who is married to a U.S. LPR.

New Rule in Force from 6th October

Tushar Mathur — Sat, 10 Oct 2009 18:13:30 +0000

There is a rule from the Department of Homeland Security that requires the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. To comply with the same now the consular officers are required to ensure that, the said applicants have obtained an I-129 petition form from the Department of Home land security, prior to the issuance of the visa. The said rule has been in force from the 6^th of October 2009.

In case there is a further requirement of a clarification about this rule you might feel free to get in touch with the Legislation & Regulations division of the Visa Service’s. The contact person would be Lauren Prosnik. Phone # (202) 663-2951.

Now the question is what is this rule been promulgated for? The answer to that is, on the 26^th of Nov 08, the department of homeland security announced the requirement for the sponsoring employers to file a petition for all the Aliens for whom R-1 non-immigrant status is sought. Also as per the same law the period of the validity of the visa is not supposed to exceed the period as mentioned in the petition. As a result of that, an R-1 non-immigrant visa would now require the applicant to be established as a beneficiary of an approved petition. The implementation of this petition requirement by the United States Citizenship and Immigration Services has been, for the purpose of authenticating and determining the petitions from the religious organizations for the religious workers. This would also help to ensure that such religious workers are admitted into the United States on the request of a religious organization and that is exactly where the workers work.

Miscellaneous regulatory findings:

As per the Administrative procedure act there is a regulation that involves the foreign affairs function of the US therefore according to the 5 USC 553(a)(1) is not subjected to the procedures of rule making as set by 5 USC 553.

As per the Executive orders 12866, the new rule has been reviewed by the department of State to ensure its consistency with the regulatory philosophy and the principals set by the Executive orders 12866. They have also determined that the cost of maintaining this rule is justified according to the benefits that are to be derived out of it.

As per the paper work reduction act does not impose the requirements of information collection, as per the provisions of the paper work reduction act 44 USC chapter 35.

How to Get Your Spouse to the US?

Tushar Mathur — Tue, 29 Sep 2009 17:20:03 +0000

For people who are already a citizen in the United States, for them there are primarily 2 ways to get their spouses to the United States to live with them.

The first one would be to file an immigrant petition filing for an alien relative. This is done using the immigration petition form I-130. The next step up on the receipt of the approval on the petition filed, you would be required to visit the United States consulate in your home country and get the physical immigrant visa. The third step would be to file for your Employment Authorization Card (EAD). The fourth step would be to file for your SSN or the social security number; this is done at the social security office. This concludes the required step for the first option.

The other option would be using the Non immigrant visa for your spouse. This visa is also known as the K3 visa. This K3 visa is sort of a temporary provision for the spouses to come over to the United States and stay together on a temporary basis. While the formalities for the formal spouse immigration is still pending. There are some specifications that needs to be taken care of for the K3 visa.

The application for the K3 visa needs to be filed in the country where the actual marriage took place. It is important that the said K3 visa has to be issued from the same country where the marriage had actually taken place. Once this visa issuance is complete then the spouse can travel to the United States and wait for the time period that would be required for the, actual immigration visa paperwork to be complete.

The filing for the said visa can be done in the nearest US consulate and in case there are children staying with the spouse, as a result of the marriage such children may apply for a K4 visa. Point to be noted here is that such children should essentially be below the age of 21.

Once the spouse has traveled to the United States on such a visa, then in the States they would have to file for the Adjustment of Status (AOS) this is done by filing the form I-485.

The next most important thing would be getting the eligibility for a job thus the next logical step would be filing for the employment authorization card or the EAD.

Once that is done then is the turn for the SSN. The spouse would be required to visit the social security office, and file for the social security number there.