Q & A July 4, 2004

I entered the U.S. with a K-1 visa in December 2000, and in February 2001, I got married with a U.S. citizen who was my long-term lover and who petitioned for me. We went to the interview in the immigration office in the end of 2001, but so far I haven’t obtained a conditional Green Card. We bought a house in Florida, have been living together and have filed the joint tax returns. Recently I found out that my husband had an affair. Although he doesn’t want to leave both the woman and me, I don’t want to live like this anymore.

Questions:

1. It has been almost three years since the filing, how come I haven’t obtained a conditional Green Card?
2. If we get divorced, how can I obtain the permanent resident status?
3. How can I protect my rights?
4. Should I collect any evidence? What kind?
5. If we don’t get divorced, how can I obtain the permanent resident status when living alone in New York?

Zhou
New York

Dear reader:

1. I cannot tell you why you have not yet received a conditional residence card. Reasons could be as varied as an immigration officer's not believing that the relationship is bona fide, security checks not clearing and the officer not paying attention to the case, missing files, or the spouse throwing away or mislaying appointment or approval papers, etc.
   
   
2. As you presumably married within 90 days of entering the United States under the K-1 in December 2000, your marriage is now over two years in duration and any residence status which you may obtain from CIS in the future would be permanent and not conditional. However, if you divorce prior to obtaining your status, you will face an uphill battle to become a permanent resident. With a divorce or even legal separation, you would no longer be able to proceed on this case, and would have to seek alternate ways to immigrate. These could be through another marriage, petition by a family member, or an application through the employment based categories. In addition, if you have suffered spousal abuse, you may be able to self petition under the Violence Against Women Act.
   
   
3. You should gather as much evidence as you possibly can that your marital relationship is bona fide and that you and your husband have been living together. In seeking other benefits from the CIS, a large issue may be whether this marital relationship is bonafide. If you have been abused by your husband, you should gather all evidence of the spousal abuse. Too often individuals in your situation do not seize all the evidence when they have the opportunity to do so, and are hard pressed to prove their cases later.
   
   
4. See answer 3.
   
   
5. If you move your residence from Florida to New York and do not divorce, you can notify the immigration office in Florida of the move and ask them either to keep the case in Florida or transfer it to the local office in New York. An interstate transfer would probably further delay your case processing. I note that the CIS is still allowed to approve marriage cases where no formal separation papers have yet been signed, as long as the relationship was bonafide at its inception. A positive factor in your case is that you have already been interviewed by the immigration office in Florida and if the bona fides of the relationship were not questioned by the interviewing officer, the immigration office in New York or Florida might not insist upon your husband's appearance to make a final adjudication on your application.

Copyright © 2003 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.