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1.
The Conditional Permanent Residence Status
A lawful permanent resident is given the
privilege of living and working in the United States permanently. A
permanent residence status will be conditional, if it is based on a
marriage that was less than two years old on the day the alien spouse
was given permanent residence. The alien spouse is given conditional
resident status on the day he or she is lawfully admitted to the United
States on an immigrant visa or receive adjustment of status.
The U.S. citizen and alien spouse must apply together to remove the
conditions on the alien spouse's residence. They should apply during
the 90 days before their second anniversary as a conditional resident.
The expiration date on the alien registration card (commonly know as
Green Card) is also the date of the second anniversary as a conditional
resident. If the U.S. citizen and alien spouse do not apply to remove
the conditions in time, the alien spouse could lose the conditional
resident status and be removed from the country.
2.
The Interview and Denial of the Removing the Conditional Permanent
Residence Status
USCIS has the authority to deny the removal of
the conditional permanent residence status, in cases where it is clear
a marriage was entered into in order to evade immigration laws. These
are cases in which marriage was used solely to obtain the Green Card
and not for genuine marital purposes.
Under the USCIS procedures, the interview could
be waived by the Service Center, in any case it was convinced that the
marriage was real. In a situation where the evidence was sufficient to
reflect a real marriage, the case could simply be approved by the
Service Center without the need for an in-person interview at the local
office.
A case that was questionable in terms of
whether it was real may be forwarded to the local USCIS office for an
interview. The local offices would conduct personal interviews with the
parties to the marriage prior to making a final decision. Some of these
cases can be denied without the in-person interview.
3.
The Consequences of Divorce for Immigration purposes
A
divorce is a legal termination of a marriage. Whether a termination of
a
marriage is deemed legal, and as a result effective, depends on the law
of the
state or country where the divorce took place. Generally, if the state
law recognizes an action to terminate a marriage as a divorce, a
marriage no
longer exists between the affected parties for immigration law
purposes.
For
the most part, physical or legal separation (i.e., a separation
formalized by a
court) of married parties does not constitute a legal termination of a
marriage.
This is the case even in circumstances where each party of the marriage
has no
intention of residing with each other again. However, in some
instances, a legal
separation may be considered a legal termination of a marriage for
immigration
law purposes. This occurs when the law of a state or country converts
legal
separations automatically into divorces after a period of time.
Generally,
if the marriage is terminated by divorce before permanent
resident
status is granted (i.e., before adjustment of status is granted for
those aliens
who applied for adjustment), the beneficiary will not
be eligible for permanent resident status through this relationship.
4. My Relative Entered the US wihout Border Exam, Can He Apply for Adjusting Status in the United States?
Unlawful entry is the act
of foreign nationals arriving in or crossing the borders into a country
in violation of its immigration law. If your relative is planning to
adjust status to permanent resident inside the United States, the
immigration status, or class of admission, is very important. Your
relative must have a lawful entry to adjust status inside the United
States. The Form I-130 instructions do not cover the unlawful entry
issues. That is because the lawful entry is a requirement for Form
I-485 application.
The lawful entry means that
the alien was admitted or paroled into the United States. In most
cases, this means that the alien entered the United States with valid
documentation, and made face to face contact with a U.S. immigration
officer, and the officer acknowledged entry to the United States.
Typically, this happens at a port of entry, such as airports or
seaports, when the alien shares his or her passport and visa.
However, at some border
entries, aliens may be “waved” across while in their cars.
This also counts as a lawful entry as long as the visitor had the
proper documentation. If the visitor entered US with a valid visa, but
that visa has since expired, the visitor still had a lawful entry.
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