Q&A with immigration attorney and expert Elina Santana, Esq., who answers some of the most frequently asked questions we have received regarding family law and immigration.
A US spouse marries a non-US spouse, and files a family-based visa on behalf of the non-US spouse. The Immigrant spouse obtains residency. The marriage falls apart and couple file for divorce. How does this affect the immigrant spouse’s status?
You need to be married at the time that you first apply for residency (green card/adjustment of status) and at the time you are called to the interview. Once approved, the immigrant spouse will obtain residency, but with certain conditions.
Green card is given to you conditionally for two years. After the two years, the immigrant spouse can request Immigration to remove these conditions and apply to become a citizen.
At that point, Immigration doesn’t care as much if you’ve gotten divorced and separated. You just need to prove that the marriage was valid at the time while it lasted. That is all they are looking for; that the marriage was not a result of fraud.
It’s really hard when people are in the limbo stage during their conditional residency part because immigration requires the signature of both spouses on the forms if you are not divorced.
You’re either married and filing together; or you’re divorced. There’s no option for being separated from your spouse.
As long as you’re cooperating with your soon to be ex-spouse and they are willing to sign, that’s ok. It’s common to submit an application with an explanation stating that they parties are separated at the time; however, the marriage was real while we lasted, and a divorce is pending. That’s ok. Both parties may submit and sign a statement to that effect, and that would be a legitimate basis to request the removal of conditions.
But if you have uncooperating spouses, and there’s fighting going on in the divorce, then a lot of people have problems getting that signature. And that’s where the real problem comes in.
Is it common for the ex-spouse to be called for an interview when the immigrant spouse is applying to remove the residency conditions?
It’s not common for the ex-spouse to be called to the interview if the divorce is final. Both spouses are required to go to an interview if the divorce is not final or a divorce is pending.
It’s common for immigration to interview an immigrant spouse when that spouse seeks to remove conditions after a divorce, because Immigration officers want to ask you questions to see if the marriage was valid.
What happens if the soon to be ex-spouse decides not to attend the interview?
It is not advisable; because Immigration can deny the request to remove conditions for not showing up. It’s presumed that the application is abandoned when a spouse does not show up to the interview. If this happens, you can refile your request to remove conditions after the divorce is finalized.
Immigration doesn’t want to deny you based on a spouse being difficult. If they want to deny you, it would be for legitimate reasons.
Have more questions?
It is highly recommended that you seek assistance of counsel when faced with any legal issue, especially when dealing with immigration.
To contact attorney Elina Santa, call (305) 916-4800. For more information, visit her website at https://www.srlawpa.com.
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