Question: I got my green card through my husband in early 2009, but now we are having problems and he’s been drinking a lot and stays out without telling me where he’s going. Last month he came home all drunk at four in the morning and we got into an argument and he went storming out  to stay at his brother’s house. Whenever I try to discuss things with him he threatens me to mind myself or he will tell immigration to take back my green card. I am so sick and tired and I just can’t take this anymore. I only got a 2 year green card that expires later this year. I do love him but he  treats me so bad that I can’t keep my self-respect if I put up with it anymore. So I want to know if I will lose my green card if we divorce.

Answer: That is a really great question that affects many married immigrants. The following provides a general overview of this area of marriage Immigration which can have very serious consequences.

Under Immigration rules, foreign spouses who obtain Green Cards (U.S. Residency) through marriage to a U.S. Citizen are only issued a two year conditional Green Card - if they have been married for less than two years by the time of the immigration residency interview. After a foreign spouse obtains the 2-year Green Card, the couple must file a second petition (I-751) together to remove the foreign spouse’s “conditional” residency to make the green card permanent. This is required to be filed once the foreign spouse has had residency for at least one year and nine months. To ensure approval, the petition should include extensive documentation for the past several years to show that the couple has been living together and continue to be in a real marriage.

The issue gets much more complicated when a couple is no longer together.

Separated-Filing Jointly-Both Spouses Attend Interview: When a couple is separated and not divorced, a joint I-751 can still be filed, but with extreme caution.  The USCIS  will generally schedule the couple for an interview. If both spouses (the foreign spouse and U.S. Citizen) attend the interview, the officer will review the couple’s marital documentation and question both spouses to about their marriage to determine whether or not he or she believes the marriage was entered into for love and not for immigration purposes. These cases can be extremely difficult, particularly when a couple has been separated for a long period of time. However, if a marriage is real and there is extensive evidence to prove that the couple lived together in a real marriage until the separation, and the couple is well prepared to answer difficult questions about the marriage – such cases have a chance of being approved. If the case is denied, however, the foreign spouse can be deported.

Separated-Filing Jointly-Only Foreign Spouse Attends Interview: This is never recommended. When a couple is separated, but still files a joint I-751 and only the foreign spouse attends the interview alone, without evidence of domestic abuse, the case will generally be denied and deportation instituted. If there is time, the foreign spouse may quickly obtain a divorce, then re-file the I-751 requesting a Waiver of the joint filing requirement.

Divorced: In cases where the couple is divorced, the foreign spouse must file the I-751 and request a Waiver of the joint filing requirement. The foreign spouse has the heavy burden of proving that the marriage was real, entered into for love, not for immigration purposes. These cases can often be very difficult, result in an interview and at worst, deportation if denied. Extensive documentation of the marriage must be provided to establish that a “bona fide” marriage existed before the couple divorced. Affidavits from the foreign spouse’s friends and family are generally not given much weight by the USCIS.  However, Affidavits from the former spouse and his or her family are very helpful. Well prepared and documented cases and those involving domestic abuse against the foreign spouse have a higher likelihood of  approval. Therefore, the generally accepted practice in cases where a couple is no longer living together  and reconciliation is not possible, is to obtain a divorce then file the I-751 requesting a Waiver, supported by extensive documentation of the marriage and a very well prepared case.

*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understand that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call your state’s attorney Bar Association.