Getting told to leave the U. S. by the government, is there anything I can do about it?

February 9, 2009 7:37 PM

I received a letter Friday from the United States Citizenship and Immigration Services (USCIS) informing me that I my Green Card will not be renewed. Is there any way I can keep my Green Card?

Here's the text of the letter I received in the mail from USCIS (I elided any personal information as well as the text of a letter quoted by USCIS sent by someone else than me):

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Date: Feb 5 2009

NOTICE OF INTENT TO TERMINATE CONDITIONAL STATUS

This notice is in regards to the jointly filed Petition to Remove Conditions on Residence (Form I-751) which was filed in accordance of Section 216 of the Immigration and Nationality Act. This petition was filed by you and your wife [...] with St. Albans, Vermont on May 31, 2007. The petition was forwarded to the Providence Field Office for evaluation. After considering all information present in the record of proceeding, it is the intention of USCIS to deny your petition.

Section 216(c)(1) of the Immigration and Nationality Act states:

In order for the conditional basis established under subsection (a) for an alien spouse or an alien son or daughter to be removed the alien spouse or an alien son or daughter to be removed the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Attorney General, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1), and in accordance with subsection (d)(3), the alien spouse and the petitioning spouse (if not deceased) must appear for a personal interview before an officer or employee of the Service respecting the facts and information described in subsection (d)(1).

Section 216(d)(1)(A)(i) of the Immigration and Nationality Act states:

Each petition under subsection (c)(1)(A) shall contain...the facts that the qualifying marriage was entered into in accordance with the laws of the place where the marriage took place, has not been judicially annulled or terminated, other than through the death of a spouse, and was not entered into for the purpose of procuring an alien's admission as an immigrant.

United States Citizenship and Immigration Services (USCIS) records indicate that you married [...] , a natural born United States Citizen [...] in Reykjavik, Iceland. USCIS records indicate that this was your first marriage for both you and [...]. On April 29, 2005, [...] submitted a Petition for Alien Relative, Form I-130, seeking to classify you as the spouse of a United States citizen. The petition filed on your behalf was approved on April 29, 2005 at the American Embassy in Reykjavik, Iceland. On July 05, 2005, you entered the United States through Boston, Massachusetts as a CR1. Due to the fact that you and [...] were married for less than two years at the time you entered the United States, you were classified as a conditional permanent resident of the United States.

On May 31, 2007, you and [...] jointly filed a Petition to Remove the Conditions on Residence, Form I-751. Through this petition, you indicated that you and [...] were living together in a bona fide marital union. Due to the fact that you had initially submitted a limited amount of evidence which support a bona fide relationship, the file was transferred to the USCIS office in Providence, Rhode Island for an interview which occurred on or about May 25, 2008. The record of proceeding reflects that during the interview regarding your I-751, you and [...] both indicated you were informally separated since September 01, 2007. Included along with the I-751 petition was a summons for divorce issued by the State of Rhode Island and Providence Plantations Family Court. This summons listed [...] as the plaintiff and yourself as the defendant. You also submitted an undated letter from yourself indicating that you and [...] are in the process of filing for divorce. [...]

Due to the fact that you and [...] are no longer living together in a joint, bona fide marital union, it is the intention of USCIS to deny your jointly filed petition. You are hereby notified in accordance with the provisions of Section 216(c)(3)(C) of the immigration and Nationality Act, this office intends to deny your petition and terminate the permanent resident status previously accorded to you. You are granted eighteen days (twenty-one days if this notice was received via mail) in which to respond to the above allegations and to present any additional evidence which in your opinion will justify a reconsideration of this determination. Failure to respond to this notice may result in the termination of your conditional permanent resident status. All responses must be received at the USCIS Field Office in Providence, Rhode Island at the address provided in the heading of this notice.

Any questions you have may be answered by the Service office nearest your residence, or at the address shown in the heading of this letter. If you wish to speak with a CIS officer, please make an INFOPass appointment through our website at www.uscis.gov.


Sincerely,

[...]


cc:
BY: [...]
Form I-291

------------------------------------

Here's some additional information:

I have worked at the same place for 3 years. Before moving to the US in 2005 I was an exchange student in Massachusetts the winter of 2002-3 (when I met my ex-wife).

posted by Kattullus to law & government (30 comments total)

Oh... and I can't afford to get a lawyer.
posted by Kattullus at 7:37 PM on February 9

Another crucial and missing piece of information: you got the green card by marrying an American, from whom you are now divorced?
posted by rhizome at 7:40 PM on February 9

Yeah, I did get a Green Card from marrying an American. We separated and divorced during the process of removing conditional status.
posted by Kattullus at 7:42 PM on February 9

If you can prove that you entered the marriage with honest intentions you could have your conditional status removed. This would of course involve your wife, and I am not sure what exactly would be required to convince them. You need a lawyer.
posted by Brennus at 7:44 PM on February 9

I did send a whole bunch of supporting material (lien of a loan we took out together, rental leases to apartments we rented together, pictures, supporting affidavits etc. I'd give a more detailed list of what I submitted but unfortunately my copies got lost when I moved and USCIS didn't want to give me copies of what I had sent them. Yeah... I know I should have had copies of my copies in a secure location).
posted by Kattullus at 7:51 PM on February 9

Even if you cannot afford a lawyer, can you afford to move back home and find a new job? I think you are in a situation where you can't afford to NOT get a lawyer, but you may just be out of luck.

BTW- I would recommend that, if you do get a lawyer, get one that is a member of the American Immigration Lawyers Association. That is the only set of lawyers that specialize in immigration law.
posted by slavlin at 8:24 PM on February 9

Well, since I'm from Iceland getting a job there might be problematic as there aren't that many jobs to be had right now.

That said, I certainly have no intention of staying in the US if my residency permit is revoked. I was not built for an outlaw's life.
posted by Kattullus at 8:30 PM on February 9

Go talk to the U.S. Senator for your state. They should have regional offices within driving distance, and they wield a surprising amount of power when it comes to helping individual constituents out with their problems. If you explain to the person in the office in charge of constituent services what the situation is, and that you got your Green Card legitimately and with good intentions, they ought to be able to at least lean on the USCIS to take a look at you and consider why exactly you are not desired in the country.

The office I worked in as an intern handled stuff like this fairly frequently, YMMV. Good luck.
posted by Picklegnome at 8:45 PM on February 9 [3 favorites has favorites]

There are community legal centers that offer free/discounted help with immigration. You should try to find one in your area, and your local USCIS office should be able to give you names and phone numbers.

I also got my green card through marriage. My understanding is that it is extremely difficult to get your conditional status removed if you split up within those first two years. I think the only exception they easily make is for battered spouses.

Their might be other options (a quick search on Google lists other ways to lift the condition), but it really seems like you need to find a lawyer.
posted by hammurderer at 8:52 PM on February 9

I can't afford to get a lawyer.

How much can't you afford it? What is your access to credit?

I think you need to accept that attempting to stay in the US is going to be expensive with no guarantees of success. You should at least shell out for an initial consult to see whether it's worth continuing.

I'd agree that you should talk to the offices of your Representative or Senators, whoever has the best reputation for constituent service.
posted by ROU_Xenophobe at 8:53 PM on February 9

Picklegnome: Go talk to the U.S. Senator for your state.

Thanks for that. There's at least one within walking distance of where I work and I think the other U. S. Senator is also nearby. I will definitely give this a shot.

hammurderer: I also got my green card through marriage. My understanding is that it is extremely difficult to get your conditional status removed if you split up within those first two years.

We separated after having lived in the US for more than two years. The separation and divorce happened between getting a year's extension of my conditional status and being called in for a hearing.

ROU_Xenophobe: How much can't you afford it? What is your access to credit? [...] You should at least shell out for an initial consult to see whether it's worth continuing.

I'll price out some lawyers and figure out what my options are when it comes to financing a consult.

But if I do get a consult I'd like to be as well prepared as possible.
posted by Kattullus at 9:03 PM on February 9

From that letter, it sounds like you jointly filed the I-751 as a standard 'removal of conditions' petition (i.e. box a on the form [pdf]) The USCIS-approved way to handle divorce while an I-751 is proceeding to re-file an amended petition on the same form requesting a waiver as soon as the divorce is finalised (and pay another $500 fee). That's presumably why the original petition was denied.

Now, you can't file for the waiver until the divorce decree is issued. Did that happen after your interview? Were you told anything about the need to re-file during that interview?

You certainly need to make an INFOPASS appointment and ask if it's possible to re-file I-751 under the good faith waiver as part of your response. You certainly need to find as much documentation as possible. You almost certainly need a lawyer, unless you can afford to pack up and leave the US, because if that response is dismissed, you're either heading to immigration court or leaving before it gets there. And you should pick one of your congresscritters, as ROU_X said, and call his/her office.
posted by holgate at 9:04 PM on February 9

I was not told anything about re-filing, only given a list of information to provide. The divorce decree was issued after the interview (in Rhode Island they're issued 90 days after the divorce hearing).
posted by Kattullus at 9:11 PM on February 9

Get the best lawyer you can, immediately. This requires instant action. See if your place of employ can help with the lawyer. They need to be on board and may be your lifeline.

Do not hesitate.
posted by Ironmouth at 9:41 PM on February 9

Catholic Charities runs a legal immigration services clinic in some cities, with fees on a sliding scale determined by income. You might want to check and see if they do this anywhere near you.
posted by dilettante at 3:21 AM on February 10

Also, check local law schools. Many have clinics where students and faculty work together to take cases from people that wouldn't be able to afford legal services. Many of them have immigration clinics. It's kind of like a teaching hospital, but for law students.
posted by Inkoate at 4:36 AM on February 10

If you can prove that you entered the marriage with honest intentions you could have your conditional status removed. This would of course involve your wife, and I am not sure what exactly would be required to convince them.

I'm the ex-wife and FWIW, I went to the immigration interview with him to testify that the marriage was undertaken in good faith. Just to head-off any "ask your ex to help you!" questions, I already did what I could and hey, being the "ex" while I have no ill will, I'm not going to be calling any Senators.
posted by grapefruitmoon at 4:36 AM on February 10 [1 favorite has favorites]

You have a conditional family based greencard based on a family that no longer exists, which was the condition by which you were granted your greencard? I'm sorry but lawyers are not going to be able to help you no matter how much people here claim they have some magical solution, they don't. In fact most have less idea of what to do than you do but will still gladly take your money for nothing. This is nothing against the legal profession in general, I've just seen my fair share of people in your shoes ripped off.

What you need is to get an employment based greencard or a plane ticket to Iceland. USCIS has rightly determined that the conditions for your conditional greencard were not met, unless you can show that, in fact, you are not actually divorced and that the condition that the marriage "has not been judicially annulled or terminated" was not violated then there is nothing a lawyer can do. What you may want a lawyer for is filing for an employment based permanent residence. This will require an employer who will sponsor you.
posted by Pollomacho at 5:09 AM on February 10

Please go ask this question in the VisaJourney forums. This kind of thing comes up all the time over there. They can tell you how to best fight this.

Pollomacho, someone with conditional residency based on marriage to a US citizen does not still have to be happily married to be eligible for removal of conditions. He just has to demonstrate that he entered the marriage sincerely.
posted by thirteenkiller at 6:00 AM on February 10

Pollomacho, someone with conditional residency based on marriage to a US citizen does not still have to be happily married to be eligible for removal of conditions. He just has to demonstrate that he entered the marriage sincerely.

From the letter:

Section 216(d)(1)(A)(i) of the Immigration and Nationality Act states:
Each petition under subsection (c)(1)(A) shall contain...the facts that the qualifying marriage was entered into in accordance with the laws of the place where the marriage took place, has not been judicially annulled or terminated, other than through the death of a spouse, and was not entered into for the purpose of procuring an alien's admission as an immigrant.

In this case the marriage has been judicially terminated, they told the interviewer they were seperated and filing for divorce. They are now divorced. That is judicial termination.

Due to the fact that you and [...] are no longer living together in a joint, bona fide marital union, it is the intention of USCIS to deny your jointly filed petition.

Because they aren't happily married, according to the law, they have been denied removal of conditions. They may have demonstrated that they entered the marriage in good standing, the fact that they are no longer married makes that moot because they can't show that the marriage was not judicially terminated, because it was.
posted by Pollomacho at 6:27 AM on February 10

Pollomacho, there is an option to file for marriage-based I-751 after the breakdown of the marriage. The petitioner just needs to demonstrate that the marriage was entered into in good faith. See part 2 section D on the I-751 form, and the form instructions at http://www.uscis.gov/files/form/I-751instr.pdf where it indicates that the immigrant can apply for a waiver of the joint filing requirement if he entered into the marriage in good faith but the marriage was subsequently terminated by divorce.

In Kattullus' case it appears the divorce was not finalized until after his interview and I-751 adjudication, so he probably filed correctly as a married person. I think he needs to re-file now as a divorced person. Getting a divorce does not automatically disqualify the immigrant for removal of conditions of residency. He just needs to demonstrate that his marriage was sincere and legitimate while it lasted.

Kattullus, by and large the best immigration advice I've gotten from AskMetafilter is to go to VisaJourney. Lots of people get things right here, but not everyone, and there's just much more knowledge and depth of experience among the posters at VisaJourney.
posted by thirteenkiller at 8:22 AM on February 10

Pollomacho, you're being an ignorant distraction here. Stop it.
posted by holgate at 8:37 AM on February 10

Yeah, I'm a little confused as to the time line here, but it seems that, because the process was so slow, you were in divorce proceedings before the interview. Whilst it wasn't finalized at the time, it must have seemed imminent, so that means that they think that you filed incorrectly. It looks like very bad timing, but you are allowed, as thirteenkiller says, to apply for a waiver of the joint filing requirement. I would also take this to VisaJourney, if I were you.
posted by ob at 8:51 AM on February 10

In addition to visajourney, see alt.visa.us.marriage-based . Filing a 751 on the basis of good-faith after divorce is relatively common; it does not always meet with success.
posted by ROU_Xenophobe at 9:07 AM on February 10

Pollomacho, there is an option to file for marriage-based I-751 after the breakdown of the marriage.

Yes, that is true, however they did not take that option at the time that the option was available. They filed jointly and, after seperation, he did not resubmit a petition with a request to waive the joint filing requirement.

Getting a divorce does not automatically disqualify the immigrant for removal of conditions of residency.

No, unless you are filing a joint filing based on the good faith of an existing marriage, which is what they did.

Pollomacho, you're being an ignorant distraction here.

I am trying to give honest advice on benefit adjudications based on my experience in immigration work both inside an out of the Federal government. If that is ignorant and distracting then please flag and move on. It's certainly more accurate, I feel, than much of what one can find at visajourney. I'm also not keen that the poster should have to shell out money that he stated he does not have to a lawyer who will provide him no benefit. It is my opinion that having a paralegal type, package, and mail a petition package that the poster has put together himself is not going to be worth the $1000 that he will pay a lawyer for it. Others certainly won't share that opinion, but that is up to them.

Now, as far as advice, he should refile, with the filing fee and request to waive refiling before the 23rd of February (within 18 days of Feb 5th, this means have it ready to FedEx no later than the middle of next week). In addition, he should look for employment based sponsorship if it is available, because USCIS is not often known to reverse course so late in the game and this is plan B. In addition, he should be prepared to leave if things don't go well, have your affairs in order, someone to take the cat etc... In addition, should he decide to write a congressperson he should include a specific request that the congressperson act on his behalf because otherwise the request for help is as useless as any private citizen writing in on his behalf.
posted by Pollomacho at 10:07 AM on February 10

Thank you all, both those who commented in-thread and contacted me via MeMail. This has all been helpful. I'm also getting advice from lawyers I'm acquainted with (unfortunately none of them live or practice in Rhode Island) as well as others familiar with immigration matters. My next step is to call the offices of congresspeople and set up appointments.

I will also see what VisaJourney and alt.visa.us.marriage-based have to say.

If things keep moving at the same pace they have yesterday and today I should know what my course of action is by the end of this week, beginning of next.
posted by Kattullus at 1:16 PM on February 10

USCIS has rightly determined that the conditions for your conditional greencard were not met, unless you can show that, in fact, you are not actually divorced and that the condition that the marriage "has not been judicially annulled or terminated" was not violated then there is nothing a lawyer can do.

Just to clarify, the divorce is finalized. The divorce was not final, but was in process when the immigration interview took place. We were each questioned alone and I testified that the hearing had taken place in March (this interview was in May) and that all that was left was to file the final paper.

Yes, the marriage was taken in good faith, and Kattullus chose to end that marriage knowing full well that this could be a consequence. We had a discussion about this at the end of the relationship and he knew that by divorcing, he was putting his green card in jeopardy as his status was still conditional on marriage. Yes, I was the plaintiff in the divorce suit, but that was due to other factors and not because it was "my idea."

At the time of the divorce, I remember hearing about getting a different visa/green card through work, though clearly I have no idea what came of that.
posted by grapefruitmoon at 2:37 PM on February 10

Update: Today I received my new Green Card. I have permanent residency until 2019. I'd like to thank you all. Getting a lawyer was the smartest thing to do and not expensive at all (in total I paid $750). Woot!
posted by Kattullus at 4:20 PM on October 29

Abd oh yeah, I marked every comment that told me to get a lawyer as 'best answer.'
posted by Kattullus at 4:23 PM on October 29

It's always good to know how things work out: and for the record, you have permanent resident status... permanently. The ten-years-hence date is when the I-551 (i.e. the "green" card) expires. A technicality, perhaps, but immigration is all about the technicalities.
posted by holgate at 10:54 AM on October 30