How to avoid automatic termination of US green card in marriage cases

A foreigner who marries an American citizen will be issued only a conditional resident status of two years. This two-year status is given if the marriage is less than two years. A petition must then  be filed prior to the expiration of the conditional status in order that the green card may be extended.

The conditions are removed when the couple file a joint petition for removal of conditions with the US Citizenship and Immigration Services (USCIS).

But what happens when there is a breakdown of the marital relationship before the second year anniversary?

Debby and John were married in a civil ceremony in Manila. John, a US citizen, filed a petition for Debby as his spouse. When the immigrant visa application was approved, the couple moved to the United States to permanently reside in California. After a few months of living in the United States, Debby gave birth to their son, Edward.

But the marriage became stormy when Debby discovered that John was having an affair with a coworker at his office. Debby decided to return to Manila with their baby. Debby’s green card was conditional—valid  for only two years. She did not file for the removal of her conditions. Distraught with the breakdown of her marriage, she said she completely forgot about the requirements of extending her green card.

After three years, Debby wanted to return to the United States so her son could go to school there. However, her green card had already expired.  How can she return to the United States?  What are her options of returning?

Two-year validity

The two-year conditional green card provision was enacted in order to prevent marriage fraud. To remove the conditions of the residence, even after a marriage breaks up, the non-US citizen spouse must show  proof that the marriage was entered into in good faith. This petition must be filed within 90 days before the second anniversary of the non-citizen’s grant of conditional resident status.

The USCIS may remove the conditions and grant a 10-year green card if it is satisfied that the marriage was not entered for immigration purposes.

Automatic termination

If the green card holder fails to file a petition for removal of conditions either jointly with the US citizen spouse or through a waiver, the green card status is automatically terminated.

Once the green card is terminated and the foreign spouse is still in the United States, deportation proceedings will be instituted against the noncitizen. The latter will have the opportunity to file a petition for the removal of conditions and if it is denied, the immigration court may review the denial. The noncitizen risks being deported if he or she is not able to convince the court that the marriage was entered into in good faith.

Those whose marriages were dissolved before the second year anniversary either through annulment or divorce may still have the conditions of residence removed by filing a timely petition. A waiver of the joint filing of the petition to remove conditions may be filed by the divorced noncitizen. The USCIS may not terminate the resident status even if the marriage is no longer viable and the couple is no longer living together—as long as the marriage was not fraudulent or a sham from its inception.

Debby’s case

Prior to the second year anniversary of her green card, Debby should have filed a petition for the extension of her green card. Despite her separation from her US citizen spouse, she could have easily proven that her marriage was entered into in good faith. Considering that they have a child together, proving the validity of the marriage should not have been difficult.

If Debby and John reconcile, a late joint filing of the petition to remove conditions is allowed if filed within reasonable time. This joint petition must include an explanation for the delay in filing. As an alternative, John may refile a new petition for his spouse.

But if no reconciliation occurs, Debby must consider the various nonimmigrant visa options to enter the Uniyed States. Having failed to take appropriate action within a reasonable time, she is now facing the harsh consequence of a terminated resident status.

(Tancinco may be reached at [email protected] or at 887-7177 or 721-1963 or visit her website at www.tancinco.com)