By Debbie McGoldrick

Marriage Split

“I RECENTLY received a green card through my U.S. citizen husband which was issued conditionally for two years. We are considering separation, unfortunately, realizing we made a mistake. How will this affect my legal status? My husband says he’ll help me, but I can’t be sure. If we divorce right now, can I still have my green card made permanent?”

THIS column will provide you with some general advice with regards to your questions, but you must seek further counsel from an immigration attorney who will be able to better answer in accordance with the particulars of your case. Obviously the matter is much too important to handle any other way.

Your marriage must have been less than two years old at the time you were issued permanent resident status, which is why you received it on a two-year conditional basis. Those in this situation must apply within the 90 day period before the green card expires to have the condition removed, and the status made permanent.

This is a routine procedure for couples whose marriages are still viable. The couple must jointly file Form I-751 with the U.S. Citizenship and Immigration Service, follow the accompanying instructions and pay the appropriate fees.

If all is in order a new, permanent green card, one with a 10-year expiration date, will be issued. In many instances, this can happen without the couple having to appear at their local USCIS office for a follow-up interview.

If during the two-year conditional residence period the marriage encounters difficulty, it isn’t necessarily going to result in the termination of the alien spouse’s legal status. There are instances where the spouse can apply for a waiver of the requirement to file the I-751 jointly – the most clear cut example of this would be when spousal abuse is involved.

It is possible for a divorced alien spouse to proceed with full legalization, if it can be proved that the marriage was entered into for genuine purposes as opposed to solely obtaining immigration benefits. Again, this is a very complicated area of U.S. immigration law, and a lawyer must be on board to help navigate the process.

According to a memo released by USCIS a while back, the divorce must first be finalized before a conditional permanent resident spouse can file for a waiver of the joint I-751 requirement. In instances where finalization occurs after the two-year conditional period, leaving a spouse in undocumented status, a lawyer can request a temporary extension of status while the case is being processed.

How is it possible to prove that a marriage which lasted for a short period of time was a real one in the first place? If a child was born during the union that would be compelling evidence.

Otherwise, an accumulation of documents such as property ownership/leases, joint bank accounts, personal photographs and mementos will definitely be necessary. Sworn affidavits from family members, friends or clergy members are also helpful.

Obviously, the easiest scenario, at least from an immigration standpoint, would be to stay together and file the I-751 jointly. But at least you have other options is that’s not possible. Make sure and keep all of the aforementioned documents, and then some, to strengthen your case.