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Days are usually hectic at our office, but we rarely get a case that makes us stop in our tracks and refocus our work as much as one of these. It usually starts with a phone call from the beneficiary. They often sound nervous and scared, but the facts are usually similar. They met who they thought it was a loving and supporting partner (who happened to be a U.S. citizen), they married this person, and they filed the petition and adjustment application based on the marriage. However, now things have changed and the spouse refuses to go to the marriage interview with U.S. Citizenship and Immigration Services.

Both the beneficiary and petitioner are required to attend the marriage-based interview with an immigration officer. If your spouse refuses to go, this could be a problem and put your whole process at risk. Now, sometimes the beneficiary qualifies for another kind of petition, such as a VAWA (Violence Against Women Act) self-petition. At times the refusal to attend the interview is part of a pattern of abuse and control by the petitioner. For instance, if the petitioner has ever been abusive against the applicant, either physically harming, insulting, belittling, manipulating, threatening, or taking advantage financially of the beneficiary, among other situations, VAWA could be an option.

This was the case of a recent caller at our office. This gentleman called us and explained his situation. His wife had violently assaulted him several times, insulted him with degrading and humiliating terms, manipulated him into giving her full control of his finances (but refusing to let him spend money), and now she was threatening not to attend the marriage interview and file for divorce. He was afraid to contact the police or request a restraining order, fearing this would only enrage his wife even more.

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Divorces are difficult. If you add to that the stress of going through an immigration process, this can be quite taxing. Generally, if your green card has been granted for 10 years, a divorce should not affect your immigration status. However, if you were married for less than 2 years at the time of your green card approval and you received the benefit for being the spouse of a green card holder or U.S. citizen, you green card would be considered “conditional” and only issued for 2 years.

In order to remove the conditions of your green card and receive your permanent status, you will need to submit an application to USCIS. Typically, these applications are submitted within 90 days of your conditional green card expiration date. Couples who are still together need to submit a joint application, evidence of the bona fides of their marriage, and likely attend an additional interview before USCIS issues a decision. Now, the process varies greatly if you are no longer with your spouse, but it’s still viable for most applicants through a waiver. Here are potential options:

  • Your marriage has ended through divorce – Your divorce should be finalized by the time you submit your application. If it’s not, you should be prepared to submit an explanation with your application and describe the reasons why the divorce has not been finalized. In addition, it is likely that USCIS will request the final divorce decree through a Request for Evidence, generally only giving you up to 87 days to respond.
  • You suffered battery or extreme cruelty at the hands of your spouse – This is perhaps the most common option applicants pursue. USCIS will consider any evidence of domestic abuse, including physical violence, threats, verbal, emotional, and financial abuse. A restraining order or reporting violent incidents to the police are not mandatory elements for this option. Also, even if you are still residing with your spouse, you could still qualify for this option as long as you have sufficient evidence to argue your case.
  • My spouse has died – and his or her passing took place after I was granted a conditional green card.
  • Ending my status and being deported would cause me extreme hardship – This is maybe the most difficult category under which you could qualify. You would need to show that the situation in your home country would pose a hardship to you if you had to go back, for instance if you would be targeted by your government due to your political activism.

You can apply under more than one of the above grounds if that is your case. In addition, you can submit a waiver under the above grounds even if you have already submitted your joint application with your spouse. Regardless of which option fits your case, for most situations you will still need to demonstrate that you entered the marriage in good faith. This means showing that you and your spouse intended to form a life together when you got married. This could be demonstrated with evidence of joint bank accounts, tax returns, correspondence to the same address, pictures, affidavits from friends and family members, among others. The evidence should cover the period of time from the granting of the conditional green card and until the time of filing for the removal of conditions and, if needed, up to the time of their interview.

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USCIS is extending the flexibilities to give more time to applicants to respond to requests for evidence and submit appeals, among other measures. The new flexibility applies to notifications issued between between March 1 and Sept. 11, 2020, inclusive. Applicants who have received one of the following notifications will have an additional 60 days to respond after the due date indicated in the notification.

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Filing date requirements for Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA); or
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion.

Back in May, U.S. Citizenship and Immigration Services had announced the potential furlough of up to 70% of its workforce in August if they do not receive the necessary funding required to keep the agency open. With a lower number of immigrants applying for immigration benefits and the federal government not agreeing to provide the $1.2 billion loan the agency required, furloughs seem imminent. USCIS has recently issued furlough notices to some employees, signaling potential drawbacks for applicants.

USCIS receives a significant portion of its funding from filing fees paid by applicants, but these have dropped to half since the COVID-19 pandemic started. If Congress does not allocate additional resources to USCIS, immigrants could expect longer wait times to see their applications adjudicated. If you are concerned about how these issues may potentially impact your case, contact our office for a initial consultation.

Within immigration law, asylum seekers are one of the most vulnerable populations. In order to qualify for asylum, applicants must demonstrate a “credible fear of persecution or torture.” A new proposed rule would make the asylum process significantly more difficult, allowing denials to be issued without a right to have immigration case heard in court. It would also change the standard for “credible fear of persecution or torture,” making an approval almost impossible for those immigrants seeking protection based on being victims of domestic violence, gender-based discrimination, or gang-related violence. The changes also make the process more challenging, allowing the government to put more weight on discretionary factors. These measures would end the possibility of asylum for thousands of immigrants escaping unspeakable harm and violence in their home countries.

In addition, the government just published their Final Rule on employment authorization eligibility for immigrants with pending asylum applications. Under the old rules, applicants would request an employment authorization document once their case was pending for 150 days. The new rule increases the waiting period from 150 to 365 days before the applicant can request a work permit. The new rule also limits the employment authorization to two years, and bans immigrants who entered the country illegally from obtaining the work permit, among other changes.

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