January 24, 2017

My US Citizen spouse and I divorced before I could get my 10 year green card. Can I still get it?

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If you received U.S. conditional residence based on marriage to a U.S. citizen, then you probably know that your green card, and your status in the U.S., will expire in two years unless you take steps to become a permanent resident. The normal next step is, within 90 days of the two-year anniversary of your receipt of U.S. residence, to file a joint petition with your U.S. husband or wife on USCIS Form I-751. Once that is approved by U.S. Citizenship and Immigration Services (USCIS), you become a permanent resident.

However, a lot of things can happen to a marriage in two years. People can get divorced or separated or the petitioning spouse might die. In some cases, the immigrant becomes the victim of domestic violence at the hands of a spouse who will no longer help with the immigration paperwork.

Any of these circumstances will make it impossible to submit the Petition to Remove Conditions of Residence in its standard and simplest form, as a joint petition signed by both spouses. You should not give up at this point, however.

Form I-751 allows you to check boxes showing that despite your good faith marriage you are now divorced, widowed, the victim of being battered or extreme cruelty by your U.S. spouse, or would suffer extreme hardship if you were denied permanent residency. If you check any of these boxes, you will still submit the form, and may qualify for permanent residence, but you will not have your spouse’s signature.

Extreme hardship. This is the most general ground for a waiver–and you technically don’t even need to prove a good faith marriage to qualify for it — but it’s also considered the hardest to qualify for. You must show that political or economic changes have arisen in your country since the time you became a conditional resident that would cause you extreme hardship if you were to return. (See I.N.A. § 216(c)(4)(A); 8 U.S.C. § 1186a(c)(4)(A).) For example, if you have recently become an outspoken public critic of a repressive government’s policies and might be persecuted upon your return, you would have a good hardship case.

If you intend to request the extreme hardship waiver, it is highly advisable that you seek the advice of an experienced immigration attorney before you file.
What USCIS Considers “Hardship” for Purposes of This Waiver

 USCIS will look at the evidence you provide to determine whether or not you would experience “extreme hardship” if returned to your former country. In determining your eligibility, USCIS will consider any credible evidence that it considers relevant, so you should submit as much evidence as possible to back up your claims.

However, USCIS will take into account only the circumstances that occurred while you lived in the U.S. as a conditional permanent resident, so make sure you can build a convincing case using evidence from the past two years (See I.N.A. § 216(c)(4)(A); 8 U.S.C. § 1186a(c)(4)(A)).

While the following is not an exhaustive list, conditional residents have been successful at obtaining hardship waivers in the following types of circumstances. You may qualify if:

  • You have lived in the U.S. for an extended period of time. If you have spent a great deal of your life in the U.S. and you do not have any family or ties in your home country, or if all of your family resides in the U.S., you should provide affidavits and other evidence to this effect.
  • You do not speak a language that is spoken in your home country. If you came to the U.S. at a young age and were not taught the language of your native country, this would be considered a hardship to you, as you would have difficulty making a living in a country where you do not speak the language.
  • You have custody of your U.S. citizen children and they would need to accompany you to your home country. If you are the primary caregiver or custodial guardian of a U.S. citizen child and he or she would need to accompany you if you were deported, you should provide documents (birth certificate, absence of other relatives who could care for the child) that prove this. If your U.S. citizen child would have difficulty assimilating into the culture of your home country, would not receive adequate medical care or education, or does not speak the native language, make sure you gather documents that demonstrate this.
  • If you were removed from the U.S., your U.S. relatives would suffer without the income from your job. If you are working to provide income for your parents, dependents, or other family members who live legally in the U.S., this could be considered an adequate hardship for the purposes of a waiver. 
  • You would not be able to find work outside the U.S. If it would be difficult to obtain employment in your home country due to poor economic conditions, discrimination, or a lack of jobs for people with your set of skills, provide evidence to this effect. 
  • You have a medical issue that cannot be treated adequately abroad. If the quality of medical care in your country of origin is so poor that you would suffer health issues if you were deported, you should obtain a note from your treating physician and supply information about your medical condition or diagnosis. 
  • The conditions in your country are such that you would experience persecution or discrimination. If you would experience extreme hardship in your home country due to your race, religion, political opinion, or membership in a social group, you should provide evidence that substantiates your status (a letter from your pastor, for example) and information that backs up your claim that people like you are persecuted or discriminated against.
  • Your U.S. citizen spouse was at fault in the breakdown of your relationship or you cannot find your spouse in order to file jointly. If you are unable to locate your U.S. citizen spouse, or your spouse abandoned you, committed adultery or otherwise contributed to the end of your relationship and refuses to file Form I-751 with you, you should state that in your petition.
  • You are unable to get a divorce or annulment due to religious or cultural beliefs. If this applies toyou and you cannot file for a divorce waiver, you could provide this evidence to USCIS.

Divorce. This ground is more clearcut. Note, however, that the divorce must actually be finalized before you can file for this waiver. And, depending on where you live, the courts may take many months to grant you a divorce. This means you may want to file the divorce papers yourself in order to get the process going, instead of waiting for your U.S. spouse to do so. On the other hand, the longer you stay married, the better your chances of showing that the marriage was bona fide in the first place. If worst comes to worst, you could either file your waiver request without the divorce decree (in order to preserve your status) but with a promise to send it later; or file your waiver request late, arguing that the upheaval in your life caused by your marital troubles was good cause for your lateness. It would be wise to get a lawyer’s help with this.

Battery or extreme cruelty. You might qualify for this section of the waiver if you have been the victim of “any act or threatened act of violence [by your U.S. citizen spouse], including any forceful detention, which results in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.” (See 8 C.F.R. § 216.5(e)(3)(i).) You are not required to be divorced or even separated from your spouse.

The main challenge to getting a waiver based on battery or extreme cruelty will be documenting the good faith marriage (particularly if you had to quickly leave the home where you and your spouse lived), as well as documenting the abuse. You will need to gather documents like police and medical reports, photos, psychological evaluations, witness statements, letters from shelters, and so on. Current law prohibits USCIS from advising the abusive spouse about the application (though Congress has made noises about changing this, so be cautious).

No matter which category you marked, you will need substantial documentation of your eligibility for approval. That will include both documents showing that your marriage was entered into in good faith (similar to what you supplied when you got your U.S. residence) and documents proving the divorce (a divorce decree), spouse’s death (a death decree), abuse, or hardship. Consult a lawyer, a local nonprofit that serves immigrants, or a battered women’s shelter for further help.

-nolo.com

EDITOR’S NOTE

-The above is not meant to serve as legal advise and is informational only. If any of the above applies to you, consult an experienced immigration attorney.

 

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