May 2009 Archives

Conditional Residence and Marital Problems

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Conditional residence is generally granted to people who have obtained green cards through a marriage that is less than 2 years old.  Conditional residence grants an immigrant all the rights that a normal green card would.  The only difference is that the conditional resident is required to file a petition to remove the conditions on their green card in the 90 day period before the second anniversary of issuance of the green card.  To successfully remove the conditions from a conditional green card, an immigrant must either jointly file to remove conditions with their sponsoring spouse, or apply for a waiver.  Waivers may be granted based on the death of the sponsoring spouse, divorce, spousal abuse or extreme hardship.

Recently, I have found that I am encountering more and more clients that are having complications with removing the conditions from their conditional green card.  The specific situation that has come up a number of times is that spouses are having marital problems with their significant other, and are unsure whether or not they will be able to file a joint petition to remove conditions.  The key point of law to remember in these situations is that a waiver of the joint filing requirement can only be sought if a final order of divorce or annulment has been made.  If the marital parties are merely separated, a waiver based on divorce can't be granted.   

Thus, the situation that has been arising more frequently is that the conditional resident can't seek a waiver because they do not have a final divorce from their spouse, and they are unsure of whether they will be able to file a joint petition because their spouse might refuse to sign.  The only advice that can be given to a conditional resident in this situation is that they must take a hard look at their relationship, and decide whether or not there is any chance for reconciliation.  If the conditional resident truly believes that their marriage can be salvaged, then they should discuss the petition with their significant other immediately and determine if the significant other is willing to sign.  If the conditional resident sees no chance for reconciliation, they they should commence the divorce process as soon as possible, as they will only be able to seek a waiver if the divorce is finalized before their conditional green card expires. 

For more information regarding conditional residence, click here.

T. Don Hutto: A Detention Center for Families

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I recently watched a fascinating documentary on the T. Don Hutto Family Detention Center, titled "The Least of These."  For those that are unfamiliar with Hutto, Hutto was a detention center that housed undocumented families, including children.  Obviously, what was so unusual about Hutto and what drew public attention was the fact that children were essentially being treated as prisoners by our government.  The reason given by the Department of Homeland Security for the creation of Hutto was that (a) security issues had made it necessary to monitor illegal entrants to ensure that they appeared for immigration proceedings, and that (b) a family detention center could accomplish this goal and keep families together simultaneously.  I found the line of reasoning by DHS suspect because their rallying cry of "keeping families together" largely ignored the bigger human rights issue, which was the imprisonment of children in the first place.

I had two major issues with the Hutto facility depicted in this documentary.  First, while I agree that the monitoring of undocumented individuals awaiting proceedings is a legitimate concern, a detention facility for families was a monumental overreaction to this problem.  For years, there have been communities ran by non-profit organizations that housed the undocumented while they awaited proceedings, and allowed the government to monitor their whereabouts.  Devices similar to house arrest ankle bracelets had also been utilized to monitor illegal entrants, and were much more humane and cost-efficient than a family detention center. 

The second major issue I had with the Hutto facility was that asylum seekers were also being detained.  Though asylum seekers are undocumented, they are still people with a viable claim to legal status in the U.S.  To be imprisoned while awaiting a hearing essentially purveys the attitude that people seeking asylum are guilty until proven innocent.  What is more troublesome is the fact that, in theory, people seeking asylum are fleeing to the U.S. to escape abuse and torture in their home countries.  In the case of the families that were held in the Hutto facility, our country's response to their issues was to imprison them and their children.

I believe that this documentary provides insight into how illogical and unreasonable the policies of the U.S. toward immigrants have been, and further highlights the need for reform of our immigration laws. 

 

Green Cards through Marriage: Evidence to Gather

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Many intending immigrants who have married a U.S. citizen or permanent resident believe that as long as their marriage is a true one based on love, there won't be a problem obtaining a green card.  The reality is that if you plan on getting a green card through marriage, you better have strong evidence to support your claim of a valid marriage. 

Long before an interview with an immigration official takes place, couples should be diligently taking the necessary steps to secure proof of their marital union.  The four areas that I recommend that couples focus on in this process are residence, finance, children and affidavits. 

It is extremely important to be able to show that you and your spouse live in the same place.  Proof of a shared residence can be demonstrated by providing a lease, mortgage or deed that has the names of both parties in a marriage.  If you have applied for a green card through marital relation, be sure to have your name added to the lease, mortgage or deed of the dwelling where both you and your spouse reside.

There are a multitude of ways to show shared finances.  The most common ways to demonstrate shared finances are through jointly filed tax returns, joint bank accounts, and monthly bills in the names of both spouses.  Again, a couple in the process of trying to obtain a green card for one spouse should be sure to file a joint tax return with their spouse, open a joint bank account, and/or call your local utility provider and request that the name of your spouse be added to the bill.  An immigration officer interviewing a married couple will no doubt be skeptical of their marriage if the couple is unable to provide any proof of shared finances.  

Other ways to prove the validity of a marriage are through children and sworn statements.  If you and your spouse have had a child together, be sure to provide a birth certificate for the child showing the names of both spouses as the parents.  A birth certificate with the names of the marital parties on it is possibly the strongest evidence of a valid marriage that there is.  If you are unable to show proof of a shared residence, shared finances or children of the marriage, sworn affidavits from friends and others who can attest to the validity of your marriage can be submitted.  When submitting affidavits in support of your marriage, make sure that the statements have a sufficient amount of detail and that they are signed in the presence of a notary.

To learn more about obtaining a green card through a spousal relationship, click here.

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This page is an archive of entries from May 2009 listed from newest to oldest.

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