No 'Automatic' Deportation for a Spouse with Expired Green Card13 June 2012
Dear Atty. Lou,
I have a friend who is married to a US citizen. A couple of years ago, the US citizen spouse was arrested and was sentenced to 5 years of imprisonment for a criminal case. My friend did not renew her green card because he was fearful and does not know about the consequences of her failure to renew. Until now the green card hasn't been renewed yet. Is this a case of automatic deportation? If she will be deported, can she bring her 2 little kids?
Your friend should understand that she is not subject to an automatic deportation. A green card holder is entitled to a hearing before an order of deportation is issued. During the hearing, she may raise various defenses or relief to avoid deportation.
Generally, if an individual nonimmigrant marries a U.S. citizen and the marriage is less than two years old at the time the immigrant visa is granted, he or she will be issued a conditional green card valid for two years. Per immigration regulations, a joint petition to remove the conditions on the green card, signed by both the spouse and the US citizen, must be filed within ninety (90) days prior to the expiration of the conditional green card. However, the failure to file the joint petition prior to the expiration of the green card will result in the automatic termination of the spouse’s lawful permanent status. This does not mean that your friend is automatically deported or removed, but she will no longer have legal status in the United States. However, even though her green card has expired, your friend can still file a petition to remove the conditional status. If your friend is placed in removal proceedings prior to filing the petition, she may request that the removal proceedings be terminated so she can file the petition before USCIS.
Your friend’s case depends on whether or not she is still married to her US citizen spouse. If she is married but separated from her husband, she can file a waiver of the joint filing requirement by showing that her removal would result in extreme hardship or that she is a battered spouse. If she is divorced, she will be able to file a waiver of the joint filing requirement by showing that she entered into marriage in good faith. Evidence of a good faith marriage includes records showing combined assets, the length of time the couple cohabitated and the reasons as to why the marriage ended.
If the petition to remove the condition and the waiver are denied by USCIS, your friend’s status will be terminated and she will most likely be placed in removal proceedings. However, your friend still has relief from removal available to her because she will be able to renew her petition and waiver before the Immigration Judge.
In the worst case scenario that the court orders a removal or deportation after hearing, your friend may take the children with her so long as she can prove that she has sole legal and physical custody of the children. In addition, she may need to get written and notarized permission from the children’s father to allow the minor children to travel internationally.
I hope this information is helpful.