Among other requirements, marriage-based green card applicants must submit to what is called a "marriage interview." Further, if the marriage at issue is less than two years old, then, generally, the marriage-based green card will be a "conditional" visa that is "good" for two years. Towards the end of the two year conditional period, the couple must file forms to have the condition removed. As part of that process, there is a second marriage interview that is required as part of the application to remove conditions.
For obvious reasons, if the couple divorces before one or the other interview, the divorce will complicate obtaining the green card and/or having the conditions removed. However, divorce does not make an applicant ineligible for permanent residence status. Essentially, an applicant is still eligible to continue the green card process if there is an independent basis for green card issuance or, for the removal of conditions, as long as the applicant can satisfy the immigration services that the marriage was not fraudulently entered into and that good and sufficient reasons existed for the divorce. This article will discuss divorce occurring prior to the two types of marriage interviews.
Divorce before the marriage-based green card is approved
As noted, before the initial marriage-based green card can be approved, the immigration services will schedule an interview appointment with the spouses. Both spouses must attend and the interview is mostly conducted jointly. The purpose of these marriage interviews is to prevent immigration fraud. Generally, the immigration officials will ask questions in an effort to determine whether the marriage is genuine.
If the couple divorces prior to the marriage interview, the non-U.S. resident no longer has a marriage-related basis for continuing to seek a green card visa. Thus, the green card application will be denied on that basis. But, if there is a separate and distinct basis for seeking a visa (such as employment), then the green card process may continue. The applicant should also discuss with an attorney whether they are eligible on another ground, such as VAWA.
Divorce before the second marriage interview
As noted, for marriages less than two years old, marriage-based green cards are generally approved conditionally for two years. Towards the end of the two year conditional period, the couple must file a joint Form I-751 (Petition to Remove Conditions on Residence). As part of that process, there is sometimes a second marriage interview.
If the couple divorces before this second marriage interview, matters will be complicated, but the non-U.S. applicant can still proceed with having the conditions removed. Why? Because the right to remove conditions is based on the validity and genuineness of the marriage when it was entered into. The fact that the marriage ended does not mean that the marriage was a sham to begin with.
Obviously, the divorce is a "red flag" for immigration officials. So, the petition to remove conditions will be examined more closely. Thus, Form I-751 must be prepared with that in mind. It will be important to explain how the marriage was genuine when it was entered into and to explain why the divorce was necessary.
One practical problem that arises is that Form I-751 must be filed jointly. Sometimes, the now-divorced spouse refuses to assist in the filing of Form I-751. With the help of experienced immigration attorneys, there are methods of getting around this particular problem. Essentially, the applicant files for a waiver of the joint-filing requirement.
Contact Yekrangi & Associates Today
For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.