This blog is meant to help applicants for green card through marriage whose spouse leaves them before interview with USCIS.
Application for green card based on marriage to a US citizen is called adjustment of status. This application process requires the spouses to be legally married and a joint interview with a USCIS officer at the end of the process, which typically requires five to six months. During this time, the US citizen spouse may decide that he or she does not wish to move forward with the application, and leave the foreign spouse with a pending green card application that can no longer be approved by USCIS because the married couple is now separated. This article is meant to help foreign spouse who has a pending application but the US citizen spouse is no longer cooperative.
If the US citizen spouse leaves you before the conditional green card is approved, the only option to continue the application without the help of the US citizen spouse is by filing a petition under Violence Against Women Act (VAWA).
If the US citizen spouse leaves you while green card application and the spouse petition (Form I-130) are pending with USCIS and the interview has not yet be scheduled by USCIS, the only recourse for the foreign spouse is to explore whether it is appropriate to file a petition (Form I-360) under Violence Against Women Act. From a glance, it seems that the law only applies to women, but it actually applies to men who are emotionally or physically abused by their US citizen wife as well. The law does not distinguish the victim based on gender. If the foreign spouse can describe how he or she suffered emotional or physical abuse while living with the US citizen spouse, USCIS can allow the applicant to self-petition and continue the green card application without the help of the US citizen.
A VAWA petition has no filing fee, but its preparation is much more complex than a basic marriage green card application. The self-petitioner is required to describe in detail the pattern of abuse and recall dates of when notable incidents occurred. The statement of the applicant is the centerpiece of a successful VAWA application, and I highly recommend that foreign spouse who are not familiar with the English language to hire an attorney to help him or her prepare the VAWA petition. A properly prepared VAWA application will take about six months to receive a work permit and about a year to receive the green card.
If the US citizen spouse leaves you after the conditional green card is granted, you can petition USCIS alone to remove the condition but a divorce decree is required.
If the US citizen spouse leaves you after the conditional green card has been granted by USCIS, you can petition USCIS on your won to remove the condition on the green card and you will not need the help of the US citizen spouse. It is important to note, however, that in order for the conditional green card holder to apply to remove the condition without involving the US citizen spouse, the foreign spouse must present USCIS with a divorce decree. This means that if the parties stay married but separated, the foreign spouse will not be able to apply to remove the condition of the green card until a divorce decree has been issued by a family court judge.
If separation occurs close in time to the expiration date of the conditional green card, the foreign spouse might need to wait past the expiration date of the green card for the divorce decree. It is important to ask a family law attorney in your state how long it would take to get a divorce decree because the waiting time for divorce varies by state. The risk is that Immigration & Custom Enforcement (ICE) sends the applicant to deportation proceeding. If filing after expiration of the green card, the conditional green card holder petitioner will also need to attach a letter to specifically request that USCIS allow the late filing of Form I-751 to remove condition.
Therefore, it is always better to file for divorce early and not wait until last minute because the process can become much more complicated after the conditional green card expires for the foreign spouse.
If the marriage breaks down after permanent resident status has been granted by USCIS, the foreign spouse can keep the green card.
After the permanent (10 year renewable) green card is approved (Form I-751 petition approval), even if there is a divorce, the foreign spouse can still keep the permanent green card that USCIS granted. It is important to note that in the event of a divorce or separation, the foreign spouse cannot apply for citizenship under the fast track 3 year rule. Instead, the foreign spouse have to wait 4 years and 9 months after the date that the conditional green card was approved. If the foreign spouse applies citizenship earlier than 4 years and 9 month, USCIS will require the applicant to prove that the marriage to the US citizen spouse is still ongoing and no separation or divorce has been filed. The citizenship application form specifically asks the applicant to disclose current marital status, and there is the option of choosing “separated”. This means that any dishonest answer can become potential misrepresentation issue and can lead to finding of bad moral character and cause problems for future application for citizenship.
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