One who marries a U.S. citizen and obtains a green card 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 to remove conditions of residence prior to the expiration of the status in order that the green card may be extended.
In a perfect marriage, the conditions are removed by filing a joint petition for removal of conditions with the U.S. Citizenship and Immigration Services. But what happens when there is a breakdown of the marital relationship prior to the second year anniversary of being issued the green card?
Debby and John were married in a civil ceremony in Manila. John, a U.S. 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 U.S., Debby gave birth to their son, Edward.
Subsequently, John had an affair with his co-worker at his place of employment. Debby discovered John’s infidelity and decided to return to Manila with their baby Edward. Debby’s green card was valid only for two years from the date it was issued. When she returned to Manila, she did not file for the removal of her conditions. Distraught with the breakdown of her marriage, she completely forgot about removing conditions of her residence or extending her green card.
After three years, Debby plans to return to the United States so her son Edward may study there. Debby’s green card is already expired. How can she return to the U.S. with an expired green card? Are there any steps that may be taken for her to get her green card extended? What are her options of returning to the United States?
Reason for the Two Years Validity
Those whose marriages were less than two year old at the time green cards were issued to the noncitizens are only given two years validity in status. This provision was enacted in order to prevent marriage fraud. To remove the conditions of the residence, the non-U.S. citizen spouse must file a petition to remove conditions supported by proof that the marriage was entered into in good faith. This petition must be filed within 90 days period before the second anniversary of the non-citizen’s grant of conditional resident status.
The U.S. Citizenship and Immigration Services (USCIS) may remove the conditions and grant a 10-year validity of the green card if it is satisfied that the marriage was not entered for purpose of procuring a noncitizen’s admission as an immigrant.
Automatic Termination
If the green card holder fails to file a petition for removal of conditions either jointly with his U.S. citizen spouse or through waiver, the green card status is automatically terminated.
Once the green card is automatically terminated and the noncitizen spouse is in the United States, removal 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 is not able to convince the court that he merits a removal of conditions and that his marriage is 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 to remove conditions with the USCIS. A waiver of the joint filing of the petition to remove conditions may be filed solely by the divorced noncitizen. The USCIS may not terminate the resident status because 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 marriage from inception, USCIS may approve the remove of conditions of residence and will extend the green card status of the noncitizen spouse.
Debby’s Case
Prior to the second year anniversary of her green card, Debby should have filed on her own the Petition to Remove Conditions on her residence. Despite her separation from her U.S. 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.
Debby will need a visa to re-enter the United States. If Debby and John reconciles, a late joint filing of the petition to remove conditions is allowed if filed within reasonable time. This joint petition must include an explanation stating the reason for the delay in filing. As an alternative, John may re-file for a new petition for her spouse. Assuming, that no reconciliation occurs, Debby must consider the various nonimmigrant visa options to enter the United States. Having failed to take appropriate action in a timely fashion she is now facing the harsh consequence of a terminated resident status.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)
