February 10, 2020

I-751 Questions and Answers: Filing Alone

Attorney Mooradian has recently assisted numerous clients in removing the conditions of their green card when their spouse has been unwilling or unable to do so.  Failing to remove the conditions on a green card within the prescribed time period can have harsh consequences.  The following is a Q&A with Attorney Mooradian.

My spouse and I are separated, but our divorce is still pending.  Can I file to remove the conditions of my green card?

An applicant for removal of conditions can often remove the conditions of the green card without the participation of their spouse through a waiver.  One type of waiver is that the couple married in good faith, but that the relationship has been terminated by divorce.  Often times, a couple has separated, but is not yet legally divorced by the time the two-year conditional green card is set to expire.  In that instance, the applicant is left in a vulnerable position where they may be asking a spouse to sign off on a joint petition, but the spouse is unwilling to assist.  Additionally, some couples may feel pressured to falsify information or omit that they are living separately from a joint petition, even though the relationship has irretrievably broken down.  An applicant or petitioner should never lie to or provide false or misleading information to the immigration agency.  As I often advise clients, the truth will usually carry the day.  If the divorce is finalized by the time the green card is set to expire, then a client can submit evidence that the marriage was in good faith along with the certified divorce decree.  In other instances, a client could wait, as there is no time bar if the client will be seeking a waiver for a divorce and good faith.  However, I typically advise clients to submit evidence that the divorce is pending along with an explanation that the case will be supplemented with evidence of a final divorce.  Given that I-751s are currently taking at least one year to process, this practice will typically allow enough time to finalize the divorce, advise the agency, and to seek a good faith waiver.  Each case is different, and processing times can change, so this is certainly something to speak with an attorney about.  

My spouse has been abusing me physically, emotionally, and/or threatening to report me to ICE and to have me deported.  What can I do?

First, if a client fears for their personal or physical safety, they should contact the police at 911.  Sometimes, clients are fearful of calling the police because they fear it might affect their immigration status.  However, if you are the victim of a crime, that may open doors for immigration benefits.  For example, if you have a two year green card, you may be able to have the joint filing requirement waived per the abuse you have experienced.  Sometimes, there is not physical evidence of abuse, but rather, the abuse has significant psychological effects.  In those instances, I recommend that clients speak with their medical doctor to get referrals to a therapist or counselor who can work with the client in improving their response and well-being after experiencing trauma.  Another avenue to seek protection would be a restraining order; I refer clients to the local courthouse, where the Clerk’s Office can assist in filling out an affidavit and obtaining an order such that the client’s spouse cannot contact them.  I do not refer clients to specific counselors or therapists; I advise my clients to seek out the protection or services that they need based on their own judgment.  I then use any evidence that might corroborate abuse to move forward in their matter and a waiver based on abuse as needed.

My spouse and I have been having problems and have been on and off in our relationship.  We are back together now and the relationship is good— and we plan to have a family.  Should we apply together?

My recommendation here is to be honest with USCIS.  If you and your spouse split up for a couple of months but are back together— you need to indicate that on your applications.  Pretending to have a perfect relationship while there may have been some conflicts in the past could be a recipe for a denial.  The agency has broad power to investigate former addresses, work history, and other public records.  They may already know that you and your spouse lived apart for a time before your application is submitted.  Presenting misleading information about the nature of your relationship during the conditional resident period could likely result in fraud allegations.  There is no requirement that your relationship has to be perfect or ideal in order to receive a 10-year permanent resident card.  The legal standard is that the relationship was a bona fide marriage, entered into not solely for the purpose of immigration benefits.  If you are in a relationship but had a period of separation— say so.  And be prepared to work with an attorney to best present the history of your relationship and bolster the bona fide nature of the relationship with evidence.  Such evidence might include developing witness statements with your attorney, gathering bank information, gathering information about any shared child(ren), and phone records and bills.  On the other hand, if the relationship has broken down and you are trying to stay together just for immigration benefits, this can be a huge mistake.  If one believes that the relationship is irretrievably broken down, then it likely makes more sense to seek a divorce and a waiver of the joint filing requirement.  Again, couples should never pretend to be together out of a perceived convenience of getting the green card.  Such actions could be perceived as fraudulent by USCIS, and the client would also be at the mercy of their spouse, who may change course and refuse to cooperate later on.

I have been called for an interview on my I-751.  Does this mean that the immigration agency is suspicious or planning to deny my application?

It is impossible to know before an interview the exact reasons that the agency has decided to interview an individual or couple.  But an interview being scheduled does not necessarily mean that there is a problem.  Before meeting with an immigration officer, though, it is wise to speak with an attorney to prepare evidence of the bona fide nature of the relationship and see if a waiver might be necessary.  In some instances, the agency may be calling for an interview because they have information of divergent addresses being used by each member of the couple; information about a child born out of wedlock; or other derogatory information about the relationship or applicant.

My spouse has died, and I don’t have much proof that we had a true relationship.  Should I just return to my country of origin?

Unfortunately, I have worked with clients who faced the major loss of their spouse dying shortly after the beneficiary arrived in the United States.  In such instances, the applicant must still show that the marriage was bona fide in nature.  These cases can be challenging because, depending upon when the spouse passed on, the evidence available may be scant.  In these cases, it is important to gather as much evidence and think creatively about what evidence might be used.  In some instances, it may make sense to submit medical records or statements from medical professionals who can speak to the spouse’s involvement in the medical care prior to the death.  Indeed, psychological records can also play a role in demonstrating the effects of the loss and showing that the marriage was bona fide.  Witnesses can also assist in developing further evidence to show that the marriage was entered into in good faith.

When do I need to see a lawyer?

I-751 issues can cause a significant amount of stress for clients.  Relationships can often be delicate and can change, and the pressure of needing to make a decision about the relationship before the conditional residency period expires can be daunting.  An experienced attorney can review your immigration history and help you understand the timeline of when applications should or must be submitted.  They can help you to develop evidence.  And they can help you feel more comfortable and confident if you need to leave a marital relationship that is either not ideal or even abusive, especially if you are remaining in the relationship because you feel pressure to do so for immigration purposes.

I am available at 508-756-6206 for any questions or concerns relating to the I-751 Removal of Conditions.

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