By: Richard Hanus, Esq.
December 19, 2023
Marriage to a U.S. citizen or lawful permanent resident is one of the more popular avenues through which foreign nationals apply for U.S. lawful permanent resident status, also known as a “Green Card”. There are a variety of reasons a foreign national’s efforts at obtaining a Green Card can fail in this context, and below is a discussion of some of the more common ones, along with possible remedies and recently issued guidance for certain denied applicants.
Obtaining the initial Green Card: Marriage based applicants are typically issued a 2 year, conditional Green Card upon first being approved. However, when the marriage at issue is more than 2 years old by the time of initial application approval, the applicant is issued an unconditional, renewable 10 year Green Card.
What are the most common reasons an initial Green Card application is denied?
Fraud: The immigration officer may detect fraud of some kind, with indications the couple’s relationship may been entered into solely for immigration purposes. For applicants undergoing processing in the U.S., this usually means an immigration officer uncovered evidence, contrary to assertions in their filing, that the couple has actually not been residing together. In other circumstances, an interested outside party may have sent a correspondence to immigration officials reporting the marriage as a sham. If the evidence of fraud is substantial and uncontroverted, the applicant not only faces the denial of their current application but may also find themselves forever barred from approval of future applications. In exceptional circumstances though, the applicant may still have future options at legalizing their status, including as a defense to removal proceedings.
The Couple Separated: Just because a couple separates does not mean a pending Green Card application will necessarily fail. Sometimes the parties will wish to continue to pursue the filing and attempt to resolve their marital differences. Other times, though, the U.S. petitioner spouse may withdraw their filing, seek divorce and refuse to cooperate in the processing of their foreign national spouse’s application. In such a situation the foreign national may be out of luck, although if he/she was the victim of physical or extreme mental abuse, a “battered spouse self-petition” (Form I-360) may be an alternate option. In other circumstances, the foreign national applicant may still have the option of proceeding with a new Green Card application and based on a new marriage. In other cases, the foreign national may be able to legalize their status by way of relief in defense of removal proceedings.
What happens when the marriage fails after the 2 year conditional Green Card is issued?
Usually, the foreign national spouse has options to remain in the U.S. and convert their 2 year conditional Green Card into an unconditional 10 year card by filing an “I-751 Waiver” of the joint petition requirement to remove conditional basis on residence. Such a filing can be premised on 1 or more of the following bases:
- Good faith marriage waiver: The couple is now divorced but that the marriage was entered into in good faith – with the presentation of documentation evidence they resided together for a definite period,
- Battered spouse waiver: The foreign national presents evidence he/she was the victim of physical abuse and/or extreme mental cruelty OR
- Extreme hardship waiver: The foreign national presents evidence that the denial of their filing and forced removal from the U.S. will result in their suffering “extreme hardship”.
Can a Conditional Resident with an expired 2 year Green Card skip the I-751 process and reapply for a new Green Card based on a marriage to a new U.S. citizen spouse?
Yes. This option has historically been available in most cases, and its viability as a remedy to clean up a messy immigration history has been further affirmed by a policy memorandum recently issued by the U.S. Department of Homeland Security/Citizenship and Immigration Services (DHS/CIS). In essence, as long as the previous failed marriage did not involve fraud or otherwise present indicators of a sham marriage, a subsequent, new marriage based Green Card filing can in many circumstances be the best way forward.
Marriage and immigration law are two topics that, when they come together, involve endless drama and complicated outcomes. Having an experienced immigration attorney by your side is a must when it comes to navigating the drama and complications that inevitably are a part of an interrupted marriage and immigration process.
PUBLISHED December 19, 2023 – “IMMIGRATION LAW FORUM” Copyright © 2023, By Law Offices of Richard Hanus, Chicago, Illinois