In June 2013, the client approached us with a decision from the USCIS stating that she had her I-751 petition for green card removal of conditions denied. The client is a foreign national and had filed for the Adjustment of Status (AOS) based on her marriage to a US citizen.
The reason for denial was that she filed a new Adjustment of Status (AOS) petition when she had already been granted a conditional permanent residence status two years ago through her US citizen ex-husband. Once a person is married to a U.S. citizen, the foreign national receives a Green Card that is valid for a duration of two years.
The foreign national is then expected to file an I-751 petition (Petition to Remove the Conditions of Residence) in order to remove the conditions on her green card and receive a valid ten year Green Card. However, the client divorced the U.S. citizen husband before completing 2 years of marriage, filed an I-751 petition based on good faith marriage, and married another U.S. Citizen while the petition was pending.
The I-751 generally requires that both the foreign national and the U.S citizen spouse sign. However, because there are often situations in which remaining married to the U.S. citizen spouse is untenable, the USCIS allows for certain waivers to be requested that will allow the foreign national to sign the I-751 alone.
These waivers could be on the account of a divorce following a marriage that was considered to be in good faith, violence or other forms of abuse from the U.S. citizen spouse, or extreme hardship that would occur if the foreign national were to be returned to his or her home country.
This waiver can be submitted either before or after the divorce is made final. However most immigration attorneys will advise you to wait until after the divorce is final to avoid unnecessary complications. You should also include the reason for your divorce in order to strengthen your case. Some common examples of justified reasons include a mutual agreement, infidelity, imprisonment, or evidence of marriage counseling.
Unfortunately, her prior attorney advised her to withdraw her I-751 petition and file a new AOS package through her current husband. According to her attorney, this was the only way for her to obtain permanent resident status in the US. as her prior marriage had ended in a divorce.
This was incorrect advice since the USCIS would never adjudicate a new AOS application when the individual had already been granted a valid two-year Green Card which had not been terminated by the USCIS or an Immigration Judge. By withdrawing her I-751 petition, the client had put herself in dangerous territory as she was left without status in the United States.
Always be sure to work alongside an immigration attorney to ensure that you are making the right decisions. However, if a lawyer ever advises you to withdraw a petition, you should seek a second opinion to help avoid complications.
What we did:
As soon as we retained the client, we knew we had to work fast. The longer the client was without status, the more at risk she was for further complications or potentially deportation. Also, there are generally no guarantees of petition approval, so with an added denial to the case, it can be challenging to remove the conditions on a green card after divorce and provide enough evidence to establish that her prior marriage was entered into in good faith. We began with filing a fresh I-751 petition.
We submitted detailed evidence establishing that her previous marriage was bona fide. We also presented supporting evidence which established that the previous marriage was terminated through no fault of hers. Additionally, we requested USCIS to reconsider all the evidence submitted with her previous I-751 petition which was initially withdrawn.
Based on our detailed legal brief proving the bona-fide marriage and supporting evidence, USCIS approved her latest I-751 petition and removed all conditions on her residence. Her green card is now valid for ten years and she will also now be eligible to apply for US Citizenship within a year.
Navigating the complexities of immigration law can be especially difficult when situations arise such as divorce. If you find yourself in a position where your spouse is refusing to cooperate with you in the immigration process, always be sure to retain a qualified immigration attorney before making any large decisions.
Clients are also highly recommended to seek a second opinion if they have been advised to withdraw any previously filed petitions. It may not be possible to undo the damage done by withdrawing or abandoning a perfectly legitimate application. Further, a new marriage based petition will not be adjudicated by USCIS if a person has been previously accorded conditional status by USCIS and that status has not been terminated.
SGM Law Group is always prepared to assist clients with challenging immigration cases in marriage and family based petitions. If you have any questions regarding your case, please contact our immigration lawyers.