World Journal Weekly Q & A - December 16, 2007

Q & A 1. 2.

Q&A 1.

Applying for Removal of the Conditional Basis of Permanent Residence (I-751) Through Joint Filing Where There is No Divorce

Dear Mr. Lee,

I got my temporary green card through marriage with my husband. We have a child who is now 2 years old. My conditional green card will expire in two months. Unfortunately we are now separated even though it is not the legal separation and thinking about divorce. My husband is living in another state, but promises that he will support me in getting my permanent green card. What should I do at this time?

Dear reader:

The best situation if you had more time and were serious about divorce would be for you to obtain a divorce and file the I-751 application to remove the conditional basis of your residence status based on the divorce but having had a bonafide marriage. In your present situation of having an unsettled marriage, separation, and little time, you are nevertheless still allowed to file a joint petition if your husband is willing to sign the petition. There appears to be no question as to the bonafide nature of your relationship. If you take the latter course and divorce before a decision is made on your application to remove the conditional basis of your residence, you must inform the U.S.C.I.S. of your changed circumstances and file a new application based upon your being divorced but having had a bonafide marriage.

Q&A 2.

Effect of Filing an I-485 Adjustment of Status Application When the Priority Date is Not Current

Dear Mr. Lee,

I have come to the United States four times, three times legally and the fourth time illegally in 2003. I got married and my wife, a green card holder, applied for my immigration through an immigration consultant on October 2, 2003. The petition was approved in September 2005. The consultant said that I could adjust my status because my father who has since passed away applied for me in 1997. So we filed my adjustment of status papers with the U.S.C.I.S. in November 2005 and paid the $1,000 fine. To this date, we have not heard anything other than getting the fee receipts. We wonder if you can take over our case to get it moving.

Dear reader:

Unfortunately there is nothing to be done at the present time. Your consultant is obviously not tremendously conversant with the immigration laws as the visa bulletin for October 2007 shows that applicants who filed under your category before November 15, 2002, are only now eligible to file adjustment of status applications. Your I-485 adjustment of status filing in 2005 was absolutely incorrect as there was no visa availability - which is required for an I-485 filing. U.S.C.I.S. unfortunately took the money instead of rejecting and returning the application as it should have. You will not be able to obtain a refund from U.S.C.I.S. as it is very miserly in refunding the fees. You will have to wait until the priority date clears or your wife becomes a U.S. citizen before you can refile the I-485 papers. If you wish me to represent you in the I-485 filing, kindly call for an appointment when your priority date is within striking range on the visa bulletin (within 60 days).

Copyright © 2003-2007 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.