Q & A July 4, 2004
Dear Attorney:
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:
- It has been almost three years since the filing, how come I
haven’t obtained a conditional Green Card?
- If we get divorced, how can I obtain the permanent resident status?
- How can I protect my rights?
- Should I collect any evidence? What kind?
- 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:
- 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.
- 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.
- 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.
- See answer 3.
- 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.
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