Marriage Based Green Card and What to Do When the Marriage Goes Bad?

Almost everyone knows that you can apply and obtain lawful permanent residence (green card) if you get married with a U.S. citizen or lawful permanent resident. The application process is usually straightforward for most people (except those had complicated immigration history), and it is also a relatively faster path to get a green card.

However, there is still lots to know. First and foremost, you, as the applicant, will bear the burden of proof, i.e. prove to the satisfaction of the USCIS, that your marriage is both valid and real, before being granted a U.S. green card.

Secondly, you will only receive a conditional green card if you have been married for less than two years when the USCIS completes its adjudication and grants your green card application. Conditional green card gives you the same rights and privileges as the permanent green card, but it expires in two years. This is true either you are admitted to the United States on an immigrant visa or adjust your status to that of a permanent resident in the United States.

You will have to file a petition to remove “Conditions” on your permanent residence, i.e. Form I-751, and to prove once again that your marriage is or was real, i.e. not entered into only to obtain the immigration benefits. You must do so within the 90-day period immediately before the expiration date on your green card. If you do not apply to remove the conditions in time, you could lose your green card status and potentially be removed from the country.

All the above should not be a problem if you have a good marriage throughout the whole process. However, it is not easy, especially with the ever-increasing USCIS processing time for the conditional green card (Form I-130 immigration petition for alien relative and Form I-485 application for adjustment of status) and the I-751 petition for removing conditions on permanent residence, your marriage may need to stand the test of time for up to quite a few years. Unfortunately, we have seen so many marriages fallen apart over the years, and also so many people tolerated their bad and sometimes abusive marriage only for their green cards. Is there a way out? It depends.

Normally you would file Form I-751 jointly with your spouse to remove the conditions on your residence. However, if your spouse refuses to file jointly with you, or if your spouse did file jointly with you, but then refuse to appear with you for the I-751 interview, or you are going through divorce before or after your I- 751 filing, you may still be able to get your I-751 approved and receive your permanent green card if you can prove to the satisfaction of the USCIS that you entered the marriage in good faith. The USCIS has clear guidance to its adjudicating officers that the focus should be on the bona fide intention of both parties when they entered into the marriage, not the viability of the marriage.

If you are still married, but legally separated and/or in pending divorce or annulment proceedings, you may file a Form I-751 by yourself and request waiver of joint filing, and later submit your final divorce decree or annulment, if applicable.

We have helped many clients successfully obtained their conditions approval after divorce or with divorce pending, with or without much joint documentation to prove the marriage. If you are in such situation, we highly recommend you seek help from experienced immigration attorney with expertise in this area.

It is also not rare to see marriages fallen apart even before the alien spouse receives his or her conditional green card, especially now than ever, because the government takes longer and longer time to process green card or immigrant visa applications. Covid-19 adds much delay to this process due to the restrictions and cancellations in biometrics and green card interview appointments.

It is usually not hopeful to get green card granted if you are going through divorce before you get your conditional green card, with a few exceptions. Here we like to introduce you the one very important way out for people in abusive marriages. This can actually be a life-saving way for some people. That is VAWA (The Violence Against Women Act). Under VAWA, you may file self-petition for green card (Form I-360) if you are physically or mentally abused by your US citizen spouse or former spouse, or your lawful permanent resident (LPR) spouse or former spouse.

To prove your eligibility under VAWA, you will need to provide support documents, among others, showing that showing you entered your marriage in good faith, and that you and the abusive spouse have resided together, such as birth certificates of children, employment records, utility receipts, medical records, mortgages, rental records, insurance policies, properly filed tax forms, bank statements, etc. You may also submit your affidavit or affidavits of others who have knowledge of your courtship, wedding ceremony, shared residence, if available.

You will also have to submit evidence of the abuse. Per the USCIS instructions, it can be reports and affidavits from police, judges, court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel, etc. If you have an order of protection, or have taken other legal steps to end the abuse, you should submit copies of those court documents. Even if you don’t have any of the above listed documents, you can always submit your own testimonies as to the various abuse and cruelty you have been put through by your US citizen or lawful permanent resident spouse or former spouse.

Attorney Tricia Wang is highly experienced in family based green card applications, and has deep insights on the various complicated marriage green card issues. Please feel free to reach out to us by calling Law Office of Tricia Wang at (510) 791-0232 or send us an email at tricia@wangslaw.com to schedule an initial consultation with Tricia regarding your family and immigration concerns.

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