Many people come to the U.S. with the intention to return to their home country before their visa expires. But then, life happens. As it always does no matter what our intentions are. People meet and fall in love.
U.S. immigration law does provide avenues for attaining permanent residency (green card) for individuals who enter the U.S. on a visa after being inspected and admitted by an immigration official. The visas include those provided for tourists, work, business, or students. Foreign nationals who enter the U.S. with authorization may apply for permanent residency through marriage to a U.S. citizen without having to leave the country for an interview at the consulate in their home country. Immediate family members of U.S. citizens are defined as Spouse, Parent, or Child under the age of 21. Those family members who enter on a valid visa may adjust to a green card holder through their relative in the U.S. even if they are no longer in lawful status. If all goes well, you marry your U.S. citizen spouse, apply for permanent residency, attend your interview at U.S. Citizenship and Immigration Services (USCIS), get approved for your green card, and live happily ever after.
Life does happen though and things don’t always end as we intended. If you are married for less than two years at the time you apply for your permanent residency USCIS will grant you what is called a “conditional” green card. This is a green card with an expiration date two years after you received your approval. This places a requirement on the foreign national to file an application prior to expiration of the green card to remove the conditional status. You will be required to provide documented evidence that either: you remain in a valid marriage with the same person that petitioned for you (a Joint I-751 Petition) or that you are now divorced but the marriage was bonafide (an Individual I-751 Petition). You should never file a Joint Petition if you are no longer with your spouse as this can lead to charges of immigration fraud.
If you are divorced this can be an intimidating situation to deal with particularly for those that do not have evidence that they were in a relationship (joint accounts, lease agreement, etc.). Many of our clients fail to file anything to remove the conditional status because their ex-spouse is threatening to report them to immigration and have them deported. Immigration Customs & Enforcement (ICE) and USCIS receive calls like this from couples involved in divorce proceedings regularly, however; this is not something that your ex-spouse can legally follow through with. You have the right to file your I-751 to remove the conditional status individually and prove your marriage was real. In fact, failure to file a Joint or Individual I-751 Petition will lead to the foreign national being placed in removal proceedings before an Immigration Judge.
Additionally, if USCIS determines that the marriage was not a bonafide marriage the individual will be referred to Immigration Court and placed in removal proceedings. Here you will be granted an opportunity to prove to the Immigration Judge that your marriage was valid and not entered into solely to obtain a green card. Before you file a Joint or Individual I-751 petition you should always consult with an immigration attorney, preferably one that is a member of American Immigration Lawyers Association and that specializes in Immigration Law.