October 26, 2010

Divorce from a United States citizen and what it can mean for the immigrant.

Many Ukrainian women can find themselves in extremely difficult situations in the United States after marrying a US citizen.  Many times, women who made a decision to marry a US citizen are willing to carry the burden of a failing relationship because they are afraid of what would happen if the marriage ends in divorce.  However, the immigration laws provide for a valuable remedy – “Good Faith Marriage Waiver to Remove Conditions on Residence”.   

What were the circumstances that made their lives so unforeseen and unpredictable, so emotionally draining and, at times, devastating?  There are many possibilities and variations because each human life is unique whose path twists and turns in the most surprising ways.  One should not generalize a life's path, should not make comparisons to other peoples' stories and remain accepting to the idea that each person has a right to build his or her own destiny, unlike all others.  This is poetry - not the reality of the immigration officers approving or denying petitions for a green card based on a marriage to the US citizen. 

Whatever the immigration officers’ personal attributes, preferences and life experiences are, their professional duty is to quickly review a case presented in front of them, oftentimes in no more than 20 minutes, and issue one of these decisions: (1) deny and place the ‘alien spouse’ in removal proceedings (i.e. start the process that may ultimately end in deportation from the US and even a permanent bar to re-enter the US), (2) approve the petition and grant a green card, or (3) issue a notice of ‘intent to deny’ asking for more evidence of a ‘bona fide’ marriage (i.e. marriage not entered merely for an immigration benefit).

The following is an example of a potentially problematic situation.  A couple married in the United States after the wife arrived under a fiancé or has been in the US with another visa.  The couple applies for and the wife receives a conditional 2-year green card. For the wife to receive a permanent green card, within 90 days of a 2-year anniversary of the first green card issuance, both husband and wife must jointly file an application to remove conditions on wife’s permanent residence.  However, one year into the marriage, conflicts arise and husband and wife become separated no longer living in the same household.  Husband shortly thereafter files for divorce and, at the same time, refuses to file a joint application to remove conditions on residence.  Divorce is finalized and judgment is issued by the local judge well before the two year anniversary.  Under the current immigration laws, at the time the divorce judgment is issued, the wife no longer has a valid green card and may have to depart the United States. 

It is easy to blame the US immigration laws for generalizations and categorical approach in evaluating marriages between two people of different backgrounds, ages, cultures, languages and families.  Nevertheless, the immigration laws provide for a potential remedy in a form of a “Good Faith Marriage Waiver to Remove Conditions on Residence”.  Essentially, the ‘alien spouse’ can petition for removal of conditions on residence after the divorce has been granted if she can prove that the marriage to a US citizen was ‘bona fide’ at the time that it was entered into.  Immigration officers always scrutinize “Good Faith Marriage Waiver Applications” much more carefully than the joint applications.  That is why it is important to supplement it with the appropriate documents and sufficient information.  “Good Faith Marriage Waiver” application can be filed any time prior to or, in some circumstances, after the two-year anniversary of the first green card issuance, as long as the divorce is final.  If approved, the ‘alien spouse’ is granted a permanent green card even though she is no longer married to the US citizen.  If handled properly and timely, Good Faith Marriage Waiver to Remove Conditions on Residence can be a ray of light for the ‘alien spouse’.

From my experience, there is no standard approach in working with clients, especially those whose green cards depend on a ‘bona fide’ marriage to a US citizen.  Relationships develop in various ways, especially now in the era of electronic communications and Skype.  An attorney’s job while representing her client in a marriage-based green card petition is first to understand the heart of the relationship, to see the intricate web of couple’s emotions, family ties, communications and conflicts.  Second is to convert this complex package of information into a well-organized, categorized and sufficiently substantiated petition that complies with the immigration laws and paints a clear picture of the couple’s life and real marriage.

Each situation is unique and must be carefully analyzed.  To receive legal advice and assistance with the conditional 2-year green card petition, joint petition to remove conditions on permanent residence, or with a Good Faith Marriage Waiver to Remove Conditions on Residence based on your circumstances, please contact Svetlana Lebedinski, the author of this article and an immigration attorney with office in Berkley, Michigan.  She can be reached at 248-850-2129. 

This article should not be taken as legal advice for any individual case or situation. The information in this article is not intended to create and does not constitute an attorney-client relationship.  The example provided in this article is for informational purposes only.