By Attorney Natalie Zhang

Under the immigration law, a foreign spouse may still obtain a permanent green card if he or she is divorced with the U.S. citizen spouse, or if the marriage is annulled.  Below is a brief discussion of the issues typically involved in such cases:

1.  After marrying a U.S. citizen, when can I apply for a permanent green card?
Answer: To prevent fraud, the immigration law requires that the foreign spouse only be granted a “conditional” or temporary green card initially, if the marriage is less than two years, at the time the green card is issued.  The conditional green card is valid for two years.  Before the expiration of the two years, the foreign spouse and US citizen spouse need to jointly submit form I-751, to apply for the conditions to be removed.  Along with the application, the couple must also submit evidence that their marriage is bona fide and not entered for immigration benefits only.
2. I have a two-year conditional green card, and my husband and I were divorced recently.  Can I apply for a permanent green card?
Answer: Yes.  Generally, an I-751 application should be signed and submitted by both spouses jointly.  Under some circumstances, however, the alien spouse can submit the I-751 application independently without the US citizen spouse’s consent or support.
3. What are the circumstances under which a foreign spouse may submit the I-751 independently?
Answer: There are several waivers available for a foreign spouse who must apply for I-751 removal of conditions alone.  One scenario is that the couple is divorced or in the process of getting divorced.   As long as the marriage was entered in good faith, and not for the purpose of evading immigration law, the foreign spouse can submit the I-751 application independently under these circumstances.  Another possible waiver is for a foreign spouse who was physically abused or subject to extreme cruelty inflicted by the US citizen (or permanent resident) spouse during marriage.  Under these circumstances, a foreign spouse may submit the I-751 application by herself or himself.   Under both scenarios, the applying spouse must submit sufficient documents proving bona fide marriage.  In case of an abusive spouse, the abused spouse must provide proof of such abuse or extreme cruelty.
4. When can I submit the waiver?
Answer: Previously, there was no waiver of the joint filing requirement if the foreign spouse is legally separated from the petitioning spouse or is currently in divorce of annulment proceedings.  On April 2, 2009, the U.S. Citizenship and Immigration Services (USCIS) issued a memorandum addressing this issue.  Under the new Memo, a foreign spouse may submit the I-751 application as soon as the divorce or annulment process is initiated by either spouse.  However, the USCIS may require a copy of the final divorce decree or annulment order from the court before it grants the permanent green card.
5. What are the benefits for the new regulation?
Answer: The new regulation provides a very important advantage to foreign spouses whose conditional green card will expire soon.  Not requiring the final divorce or annulment documentation at the time of filing permits a foreign spouse to submit the I-751 waiver as soon as possible before his or her conditional green card expires.  This is particularly important for conditional green card holders who also need to keep their employment authorizations during the time when their divorce process is finalized.
Please note that the USCIS may request for the final divorce or annulment decree within a certain period of time (usually 30 to 87 days).  Such request must be responded within the specified time frame.  Otherwise, the I-751 will be denied and the applicant’s conditional permanent resident status may be terminated.  Due to the complexity of the waiver application and strict time frame within which certain documents must be submitted, it is important that you understand the process clearly before the application is submitted.

Attorney Natalie Zhang, a licensed attorney in California and a member of the American Immigration Lawyers Association, is experienced in both immigration and business matters.  She can be reached at (877) 525-9518 or (916) 529-6988 (Sacramento Area), or via email usasialawyer@gmail.com.  Her office is located in 580 California Street, #500, San Francisco, California 94104 and she also has a branch office in Sacramento.
Disclaimer: contents of this article are not meant to be substitutes of legal advice.
© U.S.-China Law Counsel.  All rights reserved.

Some people believe that a child would age out when the child turns 18.  This is incorrect.  Under the immigration law, a “child” is defined as an unmarried person who is under the age of 21.  Furthermore, the Child Status Protection Act (CSPA) provides that certain individuals who are 21 or older would still be considered as a “child” for immigration purpose.

For example, for demonstration purpose, let’s say Fernandez is 20 years old, unmarried.  His U.S. citizen (USC) mother filed an I-130 petition today.  The
CSPA freezes the age of a child of a USC parent on the date that the USC parent files an I-130 visa petition for the child.  In Fernandez’s case, he will remain a “child” even if his visa number becomes available when he’s 25 years old.

The situation gets complicated when the petitions are filed by parents who are legal permanent residents (LPR).  Let’s say Fernandez is 18 years old when his LPR mother filed an I-130 petition.  Fernandez’s preference category is F2A or child of an LPR.  When Fernandez turned 20 years old, his mother became a naturalized U.S. citizen.  Fernandez’s age will freeze on the date of his mother’s naturalization.  Since Fernandez was under 21 when his mother naturalized, Fernandez’s petition will be converted into immediate relative category.  As such, Fernandez does not have to wait for his priority date to become current.  Moreover, he remains a “child” even if he is over 21 when his visa becomes available.

Let’s assume Fernandez got married at age 18.  His US citizen mother filed an I-130 when Fernandez was 20 years old.  A few months after the mother filed the I-130 petition, Fernandez’s annulment of marriage became final.  Fernandez’s age will freeze on the date when his annulment became final.  If Fernandez was under 21 when this occurred, the petition will be converted to an immediate relative petition.  Fernandez retains his status as “child” even if he is over 21 when his visa becomes available.

The more complicated case involves a child who is a derivative of a family-based petition.  Fernandez was 20 years old when her LPR mother filed an I-130 petition.  At the time, Fernandez has a one-year-old daughter, Mary.  Mary is a derivative beneficiary of Fernandez’s petition.  When the visa number became available, Mary was 22 years old.  Can Mary immigrate with Fernandez?  The answer will depend on how old was Mary when the visa number became available under the CSPA.  The formula to be used in calculating Mary’s age can be broken down into three steps: 1) determine the child’s age at the time a visa becomes available; 2) subtract from this age the number of days that the visa petition was pending; and 3) determine if the beneficiary sough LPR status within one year of the visa availability date.

The above examples are not exhaustive of all CSPA scenarios.  The Act was enacted on August 6, 2002, as an effort to provide relief to children who had aged out due to delays in processing of visa petitions.  Up to now, there are no regulations implementing the CSPA.  USCIS merely relies on interpretative memoranda and some of these interpretations are narrow and against granting benefits to aliens.  The complexity of the Act and the lack of implementation regulation have made CSPA remaining to be a puzzle not only to ordinary people but even to lawyers.
Our office has handled some of the most complex CSPA cases and achieved successful results.  If you have an immigration petition involving a child that has “aged out” or about to “age out,” please contacts us.  The child may be covered under the Child Status Protection Act and can immigrate to the US as a “child” status.

Attorney Natalie Zhang, a licensed attorney in California and a member of the American Immigration Lawyers Association, is experienced in both immigration and business matters.  She can be reached at (877) 525-9518 or (916) 529-6988 (Sacramento Area), or via email usasialawyer@gmail.com.  Her office is located in 580 California Street, #500, San Francisco, California 94104 and she also has a branch office in Sacramento.

Disclaimer: contents of this article are not substitutes of legal advice.  Copyright © to U.S.-China Law Counsel.  All rights reserved.