Today I'd like to discuss with you an issue
that is very important for couples that are
thinking about filing for permanent residency.
That's normally when a United States citizen spouse
is filing for an immigrant spouse to receive permanent residency status,
and that's the issue of what happens when the couple divorces.
There are three stages that we're going to discuss.
The first stage is the visa petition.
The second stage is after a green card is received,
if there are conditions on the green card.
Third, what happens if the immigrant spouse receives permanent residency status
In addition, we're going to discuss slight differences as
to what might occur between a couple that divorces,
that separates, or has the marriage annulled.
My name is Carlos Batara and I'm an immigration attorney.
I've handled many, many family unity cases, many marriage visa cases,
and this issue came to my attention, which sparked this video, just a few days ago.
An individual scheduled an appointment with me
because he wanted to discuss the removal of conditions
for his spouse that he had immigrated.
He had suspected there was fraud.
She had left him within six months of their marriage
and she had reunited with a former boyfriend,
that she had in her home country,
here in the United States.
He did not know anything about that until he finally located her.
Now she was contacting him because she had to remove the conditions on her green card
and he was wondering what he could do.
He was very sad. He suspected fraud, although he admitted
"I loved her when I married her".
He was not sure if she loved him at the time
and that's the reason why the second stage becomes important.
The government is looking at potential fraud issues.
But the first step in the immigration process is filing a petition.
It's known as the I-130 visa petition, the immigrant relative petition.
When couples file that, the legalized spouse, a United States citizen,
or it could be a permanent resident filing for an immigrant spouse,
seeks to petition the immigrant for immigration benefits.
If that's approved, then the case is going to move on to the second stage.
But what happens if between the first stage,
the visa petition and the second stage, which is the green card application,
the couple divorces.
Well, the I-130 petition is killed for all intents and purposes,
for the simple reason that it was based on a marriage
and since the marriage is no longer any good,
then the I-130 petition in terms of sponsoring the immigrant spouse
is not going to be any good for the green card application process.
There is a slight caveat there in the sense that if the marriage is legitimate
at that stage and it only breaks up for legitimate reasons.
A couple really can't get along. They thought they were in love.
They started living together.
They found out they had two different lifestyles
or two different sets of life dreams
and things didn't work out, so they split up.
That's a legitimate marriage.
That I-130 petition could still be good for limited purposes
should that spouse ever marry again or be eligible for some kind of immigration benefits
through a child, say, or a parent later on.
Of course, because of the cut off dates and those rules,
this would only apply to marriages that took place before early 2001,
and I assume some day that the law on that issue is going to change.
It's going to move from 2001, maybe to 2005, 2006, maybe 2010 or later.
But that's not the law now. But that petition could be very important later for that type of case.
And I would suggest you hold onto those petitions as long, assuming you're having a legitimate marriage
and it breaks up, save that, it could really, really help you someday in the future.
Other than that, the petition is dead.
So let's move to the second stage.
Couples often file for green card benefits for permanent residency status soon after being married.
If the immigrant spouse receives immigration benefits, receives green card status,
less than two years after the date of the marriage,
there's going to be called what is known as conditions placed on the green card,
permanent residency conditions.
Essentially, that means that two years after the grant of the permanent residency application,
the couple has had to have filed another application called removal of conditions,
and that's when the permanent residency card with conditions
a temporary permanent residency card
will then become a full permanent residency card without the conditions.
What happens then if the couple divorces between the petition,
the I-130, the initial step,
and the green card application. Well that's the problem area here.
The couple is supposed to file the petition to remove the conditions jointly.
You'll find in my You Tube collection, in my video collection,
a video that talks about the three ways that an immigrant spouse
could potentially remove the conditions filing alone.
The first one is if the divorce is completed.
If the divorce is completed, they can file proof of the divorce.
The government may ask the immigrant spouse to prove that it was a legitimate marriage.
Assuming the immigrant does that and they proved that
the divorce is legitimate and it was completed before the date of the filing
of the application to remove the conditions, then all is well and good.
But let's say the divorce papers haven't been filed yet.
Well then there are two other means by which the immigrant spouse can go forward.
One is to prove that there was domestic violence in the relationship
and the other one would be that she would suffer or he would suffer severe hardship
if the green card status was removed.
Those three issues are the subject of another video that I have on
how to remove the I-751 conditions on your green card, and if you're in that situation,
I strongly encourage you to take a look at my video
because it discusses those three options in more detail.
The third issue, then, is what happens if someone gets a divorce
after the green card is granted.
Well, the general thinking is that it has no effect.
The person is now a permanent resident. All is fine and well and dandy.
Well, not necessarily.
First thing is if you're still married to a citizen, you could apply for
citizenship within three years of the grant of the permanent residency card,
which would be one year after the conditional green card is granted if you have to go that route,
But if you're not married, you have to wait two more years.
That's really just a minor inconvenience of waiting another two years.
The bigger issue is this and it has become more of an issue under the current Administration.
The government is going to look into that marriage perhaps,
especially if you're, say, you're applying for citizenship the sixth year after marriage,
the sixth year after the green card,
or the seventh year after the green card and your divorce is still fresh.
I had a case where an individual had applied for citizenship.
She and her husband were separated. They weren't even divorced.
She went to the interview and they denied it
because they suspected marriage fraud.
Well, there was no marriage fraud and she reconciled with her husband afterwards.
Then they broke up again. Then she came to my office five years later.
So now, it was a good 12 years after the marriage.
But what happened at the interview?
She was questioned and questioned very strongly about that marriage
and the earlier suspicion that there was fraud in the marriage.
She had to relive everything from when she entered the country
and she had entered in the country on a fiance visa.
If you entered on a fiance visa and then later married a United States citizen spouse,
you almost certainly had to remove your conditions
because since you have to get married within 90 days,
the green card process moves very fast after that,
and so you're stuck having to remove conditions.
And in the citizenship situation such as this one client,
you may have to answer that whole gamut going all the way back.
Now it doesn't seem like that should happen, but USCIS,
having a great deal of latitude, especially under the current Administration,
is digging into those types of issues.
Fortunately, I suspected that that kind of questioning would occur
and my client was fully prepared to answer all the questions
and she had the dates and facts and everything ready,
so that she could blow through the immigration citizenship interview for naturalization.
But in those situations, you know, they might ask why did the marriage end so soon?
What were the issues that you couldn't resolve?
Did you attempt to reconcile?
I mean, they'll certainly ask those at the second stage
if you're seeking to remove conditions, but they may very well ask them again
at the citizenship stage.
So the general thinking that all is well and done once you get your green card.
No, no, no.
Don't, don't buy into that because it very well could turn in to a tougher interview.
So let's talk for a moment about the differences between a divorce and a separation.
I had a couple that they were breaking up
and they weren't getting along well,
but they were really close friends and they still want it to give it a try.
So they decided to separate. It was an informal separation.
He was living here, she was living there, but they still got along.
They filed the conditions together and they admitted that they were trying to work out their problems.
They provided proof because they were still paying joint bills
and they were doing a lot of things.
The officer felt that was compelling,
felt it was compelling enough to award the woman full permanent residency status.
So separation does not have the same impact as divorce,
although they will be looking at the same types of issues
because you can go forward because you're not divorced.
Now annulment is another story.
If a couple's marriage has been annulled, if it's ended through annulment,
in most cases the box that is going to be marked an annulment
is going to be one that is akin to fraud
because an annulment is not saying the valid,
the marriage is dissolved.
It is saying that it was void from the beginning,
which means that it was not legitimate from the beginning.
It wasn't real from the beginning.
If that's the case, then immigration could very well look at the marriage
as being a fraudulent marriage from the beginning,
and they're going to want to look at those, those divorce papers.
They're going to want to look at those family law papers very, very, very closely.
And so if you're in that situation and you're thinking about, hey,
let's end this marriage, and you get a set of documents from,
say, your spouse that is filing, or your immigration papers, divorce papers,
you need to take a close look at them.
you need to take a close look at them. You need to see what box is marked. Is it a box for divorce?
Or is it a box for annulment?
Or it could even be the box in California for separation.
A legal separation has the same impact in terms of your finances
and child custody and child support as a regular divorce,
but you're not divorced.
You're saying we're legally separated right now.
"We want to end these kinds of financial ties. But we're not fully committed to saying that
we're never ever going to live together again."
"We just need a really deep and serious cooling off period here."
So you need to look at those issues. And the reason is it's not just you.
I mean, what if you're the immigrant and you were thinking after you become a full fledged citizen
to immigrate another family member, a mother, a father.
You want to file papers for them. Well, if you lose your status,
if you are accused of fraud,
you are not going to be able to do any of that.
So the effects of divorce, the impact of divorce, the impact of annulment,
the impact of separation could go a lot deeper.
So you really, really need to take a close look at that.
And not all the time is a divorce necessarily the end all, be all.
I had a couple once where they were divorced
and I talked to the woman and I had actually done her original application and I said,
your spouse seemed like a nice guy. Why don't you let me call him?
And I called him. He didn't hate her. They were just like we can't get along.
"I haven't filed papers, so let's, let's do this.
I will write a declaration saying I love her,
that I loved her when I married her.
I still think she's a great person, but she's just not right for me."
And that was fine. The government saw that and he went to the interview and everything was fine.
So it doesn't mean, a separation or a pending divorce
doesn't mean the end of your case.
A real divorce doesn't mean the end of the case.
But it is going to mean how are you going to present it?
You need to be really careful about that.
So with that, I hope I helped you identify some issues.
If you're facing some marital problems and you would like to hold onto your green card
or permanent residency status and you can still communicate with your spouse,
or even if you can't, I hope that I've identified some ways that you can go forward.
I really do wish you and your loved ones the best of luck.
I hope you never have to go through that, but if you do,
I hope this video has helped you so that you can move forward.
Take care, and good luck.
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