Working after divorce, CGC until April 2010

[verunka 0]

Hello, unfortunately, my husband applied for divorce. I never liked it here, I came here to be with "MY MAN", I never wanted to moved here, but I did. The marriage did not worked out. I am planning to leave US for good as soon as I get permit to export my pet, which might take about 3 months after the divorce is finalized. I plan to keep my job and work until I leave the US. Will there be a problem with me being divorced and still working? It is not me, but US government (Fish & Wildlife) who takes that long to approve export of my pet. I know this is not an excuse for USCIS, but I really plan to leave. Is there any way for them to find me or to get in to trouble?

Receiver Cond. GC april 2008 - valid until april 2010

divorce in september 2009

still plan to work until I leave - poss. in November 2009 (hopefully the freaking US Fish... will hurry up and we can leave sooner)

Thanks for any answer or judgement

[verunka 0]

Hello, unfortunately, my husband applied for divorce. I never liked it here, I came here to be with "MY MAN", I never wanted to moved here, but I did. The marriage did not worked out. I am planning to leave US for good as soon as I get permit to export my pet, which might take about 3 months after the divorce is finalized. I plan to keep my job and work until I leave the US. Will there be a problem with me being divorced and still working? It is not me, but US government (Fish & Wildlife) who takes that long to approve export of my pet. I know this is not an excuse for USCIS, but I really plan to leave. Is there any way for them to find me or to get in to trouble?

Receiver Cond. GC april 2008 - valid until april 2010

divorce in september 2009

still plan to work until I leave - poss. in November 2009 (hopefully the freaking US Fish... will hurry up and we can leave sooner)

Thanks for any answer or judgement

[Deryck and Miho 0]

Is the divorce final yet, and is there the possibility that your husband would delay the finalization of the divorce until you have these things taken care of? Just curious... I really don't know what the USCIS says about staying, even briefly, on a conditional greencard, but be careful not to overstay for any length of time if you plan to come back to the US in the future. It may cause problems.

If you are unlikely to return, I don't see how it will matter either way. But that's just my opinion.

Sorry to hear that things did not work out for you, and best of luck on getting things squared away.

Regards,

Deryck

[Kathryn41 3,205]

Your green card is still valid until next year so you are fine. You can continue to work and live in the US until your green card expires, if you so choose. Divorce doesn't cancel your green card. If you wanted to stay, you could also apply on your own for your 10 year green card as soon as the divorce is finalized. Regardless, you can breathe easy - you are not going to be out of status or have any immigration difficulties while you wait for the necessary export documentation.

I'm sorry it didn't work out, and wish you all the best in the future.

Duplicate threads merged

Edited August 28, 2009 by Kathryn41

[JimVaPhuong 4,863]

Your green card is still valid until next year so you are fine. You can continue to work and live in the US until your green card expires, if you so choose. Divorce doesn't cancel your green card. If you wanted to stay, you could also apply on your own for your 10 year green card as soon as the divorce is finalized. Regardless, you can breathe easy - you are not going to be out of status or have any immigration difficulties while you wait for the necessary export documentation.

I'm sorry it didn't work out, and wish you all the best in the future.

Duplicate threads merged

The "condition" of her conditional green card is that she remain married to her sponsor. Technically, her conditional residence is terminated by the divorce, and the green card is no longer valid. Divorce does, in fact, cancel the green card.

The good news is that USCIS won't do anything about it unless they find out about the divorce. If they did find out, they'd send a notice of intent to start removal proceedings, giving her an opportunity to file to remove conditions with a waiver for joint filing.

[Kathryn41 3,205]

No, the condition is that the card is for 2 years. She is allowed to adjust status to remove the 2 year condition after divorce but she can also wait until the card is about to expire before she files to remove those conditions. Divorce while having the two year card does not negate the green card - it is still valid until the date of expiry which is the last date by which she can file to remove the 2 year conditional status. She is NOT required to remain married to her sponsor. To obtain her 10 year card she will be required to prove that her marriage was made in good faith even though it broke down.

Please provide the references for your statement.

My references are as follows: http://www.uscis.gov/propub/ProPubVAP.jsp?...8ce159d286150e2

From the USCIS Adjudicator's Field Manual: Section 25.1 Immigration Marriage Fraud Amendments 1996:

a) General . The Marriage Fraud Amendments of 1986 (“IMFA”) were enacted in response to a growing concern about aliens seeking permanent residence in the U.S. on the basis of marriage to a citizen or resident when either the alien acting alone, or the alien and his or her reputed spouse acting in concert, married for the sole purpose of obtaining permanent residence. Congress was particularly moved by the testimony of numerous citizens whose alien spouses had left them shortly after obtaining residence, as well as the testimony of Service representatives concerned with “marriage for hire” schemes. Congress also acknowledged the inherent difficulties faced by the Service in determining whether the marriage is fraudulent and whether the alien intended to leave the marital union once lawful permanent residence was granted.

In response to these concerns, Congress passed IMFA, which added section 216 to the Immigration and Nationality Act. Section 216 created a conditional residence requirement for aliens who acquire permanent residence based on recent marriages. The condition being that persons subject to the provisions of IMFA were required to petition the Service two years after obtaining residence for removal of the conditional basis of the residence. Failure to do so, or denial of the removal petition, would result in the alien losing residence status and being removed from the U.S. as a deportable alien. Section 216 also includes a waiver provision because it recognizes that under certain circumstances (e.g., if the marriage had dissolved through no fault of the alien), the alien’s loss of residence and deportation from the U.S. would be inappropriate.

The conditional residence provisions of section 216 apply to:

• Any alien who, based upon a marriage to either a citizen of the U.S. or a lawful permanent resident of the U.S., obtains permanent residence within two years of such marriage (i.e., as a spousal Immediate Relative or second preference classification); and

• Any child of such alien who also obtains permanent residence through his or her parent’s marriage within 2 years of the marriage.

(section b - notification excluded here)

© Filing for Removal of Conditions . There are two vehicles through which the conditional basis of residence may be removed:

(1) Joint Petition . Within the 90-day period immediately preceding the second anniversary date on which the alien obtained permanent residence, the alien and the petitioning spouse must file a Petition to Remove Conditions on Residence ( Form I-751 ) with the Service Center having jurisdiction over the alien's place of residence. Normally, a conditional resident child is included in the joint petition filed by his or her parent and step-parent. The joint petition must be filed within this 90-day window regardless of the amount of physical presence which the alien has accumulated in the U.S. The one exception to this rule is that if either the alien or the petitioning spouse (or both) is outside the U.S. on U.S. government orders, the filing window doe s not commence until the person(s) on orders returns to the U.S.

(2) Waiver . The conditional permanent resident, acting alone, may apply (also on Form I-751 ) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5 .The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Edited August 29, 2009 by Kathryn41

[JimVaPhuong 4,863]

8 CFR, Section 216:

http://www.uscis.gov/propub/ProPubVAP.jsp?...156f6a646e64bc5

(b ) Termination of Status if Finding that Qualifying Marriage Improper.-

(1) In general.-In the case of an alien with permanent resident status on a conditional basis under subsection (a), if the Attorney General determines, before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, that-

(A) the qualifying marriage-

(i) was entered into for the purpose of procuring an alien's admission as an immigrant, or

(ii) has been judicially annulled or terminated, other than through the death of a spouse; or

(B ) a fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 204(a) or 1/ subsection (d) or (p) of section 214 with respect to the alien; the Attorney General shall so notify the parties involved and, subject to paragraph (2), shall terminate the permanent resident status of the alien (or aliens) involved as of the date of the determination.

This means that USCIS will terminate the permanent resident status of a conditional resident if they discover the LPR is divorced. Apparently, many attorneys also interpret it this way:

http://www.divorcehq.com/articles/immigration_divorce.shtml

When permanent residence is granted conditionally to an alien spouse, that conditional permanent residence may be terminated within two years from the date permanent residence was granted if the marriage has been terminated through divorce. This rule also applies to the child of the alien spouse who obtains his conditional permanent residence based on the marital relationship of his parent. In other words, the general rule is that divorce terminates the conditional permanent residence.

Two years is the term of the conditional permanent resident status, it's not the condition of that status. Unconditional permanent resident status has a term of 10 years, but the 10 years is not deemed to be a "condition" of the status. Again, back to 8 CFR, Section 216:

http://www.uscis.gov/propub/ProPubVAP.jsp?...156f6a646e64bc5

A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act, except that a conditional permanent resident is also subject to the conditions and responsibilities set forth in section 216 or 216A of the Act, whichever is applicable, and § 216 of this chapter.

[Kathryn41 3,205]

http://www.uscis.gov/propub/ProPubVAP.jsp?...156f6a646e64bc5

§ Sec. 216.3 Termination of conditional resident status . (Section revised effective 4/1/97; 62 FR 10312 )

a) During the two-year conditional period . The director shall send a formal written notice to the conditional permanent resident of the termination of the alien's conditional permanent resident status if the director determines that any of the conditions set forth in section 216(B)(1) or 216A(B)(1) of the Act, whichever is applicable, are true, or it becomes known to the government that an alien entrepreneur who was admitted pursuant to section 203(B)(5) of the Act obtained his or her investment capital through other than legal means (such as through the sale of illegal drugs). If the Service issues a notice of intent to terminate an alien's conditional resident status, the director shall not adjudicate Form I-751 or Form I-829 until it has been determined that the alien's status will not be terminated. During this time, the alien shall continue to be a lawful conditional permanent resident with all the rights, privileges, and responsibilities provided to persons possessing such status. Prior to issuing the notice of termination, the director shall provide the alien with an opportunity to review and rebut the evidence upon which the decision is to be based, in accordance with § 103.2(B)(2) of this chapter. The termination of status, and all of the rights and privileges concomitant thereto (including authorization to accept or continue in employment in this country), shall take effect as of the date of such determination by the director, although the alien may request a review of such determination in removal proceedings. In addition to the notice of termination, the director shall issue a notice to appear in accordance with 8 CFR part 239 . During the ensuing removal proceedings, the alien may submit evidence to rebut the determination of the director. The burden of proof shall be on the Service to establish, by a preponderance of the evidence, that one or more of the conditions in section 216(B)(1) or 216A(B)(1) of the Act, whichever is applicable, are true, or that an alien entrepreneur who was admitted pursuant to section 203(B)(5) of the Act obtained his or her investment capital through other than legal means (such as through the sale of illegal drugs).

[JimVaPhuong 4,863]

Well met!

I propose a draw, as we were both partially correct and partially incorrect. Divorce does not, in fact, automatically terminate conditional residency. By the same token, the green card does not necessarily remain valid until the date of expiry. If USCIS learns of the divorce they are compelled to take steps to terminate the conditional residency.

In the OP's case, in the event USCIS discovers the divorce and sends the notice of intent, she can simply file the petition and request for a waiver. This should stall USCIS long enough for her to finish her business in the US. She can abandon her petition and surrender her green card when she leaves the US.

[verunka 0]

Thank you for clarification though I was little lost in all those paragraphs

[Kathryn41 3,205]

Agreed, JimVaPhuong . Actually, that was a good lesson for me not just to check the Field Manual but also to check the Regulations. Who knew there would be such a discrepancy in interpretation? No wonder USCIS runs into problems with inconsistency.

Hehehe, yes I can appreciate that, Verunka. The long and the short of it is that you should be fine until/unless you receive a notice of intent from USCIS and if that happens, then you can file to remove conditions which would buy you the time you need. It does sound like your business here should be long concluded before you would run into any problem with your status, though. Good luck to you.

Edited August 29, 2009 by Kathryn41

[3600rs 24]

Hello, unfortunately, my husband applied for divorce. I never liked it here, I came here to be with "MY MAN", I never wanted to moved here, but I did. The marriage did not worked out. I am planning to leave US for good as soon as I get permit to export my pet, which might take about 3 months after the divorce is finalized. I plan to keep my job and work until I leave the US. Will there be a problem with me being divorced and still working? It is not me, but US government (Fish & Wildlife) who takes that long to approve export of my pet. I know this is not an excuse for USCIS, but I really plan to leave. Is there any way for them to find me or to get in to trouble?

Receiver Cond. GC april 2008 - valid until april 2010

divorce in september 2009

still plan to work until I leave - poss. in November 2009 (hopefully the freaking US Fish... will hurry up and we can leave sooner)

Thanks for any answer or judgement

Hello Verunka!

Sorry about what happened. You are good until April 2010. Its hard to get an answer about whats the protocol after divorce. Well to be very pragmatic and keeping the immigration manual aside ----- REMEMBER YOU ARE A PERMANENT RESIDENT TILL THE IMMIGRATION JUDGE SAYS YOUR NOT! Do not fret!

[rika60607 215]

This needs to be pinned!!!