Can he revoke a CR1 visa for an early divorce?

[3600rs 24]

"Good faith is something that USCIS wants to see proven, rather than disproved" --- can you simplify that.

Sure. It's sort of the opposite of a criminal court, with a twist.

In a criminal court, the court starts with the presumption that the defendant is innocent. The prosecution presents evidence that the defendant is guilty. If the prosecution's evidence is not enough to persuade the court, then the defense needs to present nothing - the defendant is acquitted because of the initial presumption of innocence. Otherwise, the defense may present evidence to counter the prosecution's evidence to try to tip the scales back towards the presumption of innocence.

USCIS begins with the presumption that the marriage is not genuine. If the applicant presents no evidence to the contrary, the presumption will stand, and the application will not be approved. If the evidence is enough to persuade them, then the application will be approved. The aforementioned "twist" is that USCIS usually does NOT try to present any contrary evidence to counter the evidence presented by the applicant, so it's pretty much just up to the applicant to present enough evidence to tip the scales far enough to have the application approved.

In other words, the only thing USCIS is interested in is seeing the "good faith" requirement proven. They aren't interested in seeing it disproved since it's basically presumed to be disproved without evidence to the contrary.

Thank you Jim.

So in other words, she needs to have proof of good faith marriage to refute their presumption of fraud. How much evidence will get an approval can be anyone's guess. Its hard to say.

[3600rs 24]

It's a little premature to say that the alien can't provide enough evidence to support a bonafide marriage. Yes, indeed, she has aquired little since her arrival in the USA, but the marriage subsisted for 2 years, or she would not have been afforded CR-1 status. Now, whether that is enough to "tip the scales" or not, we can't know.

I would have her voluntarily leave the U.S. and give up her condtional residence. Clearly she will be investigated for immigration fraud and then comes the 10 year ban and that will leave her SOL.

my two cents.

ohhh also

will be proven in court a faulted divorce based off abandonment. Or the marriage will be annuled. In both cases shows fault to the immigrant and thus proving a marriage not in good faith

Some states only allow abandonment to be used to get a summary judgment without the presence or cooperation of the respondent, but they don't allow it's use to assign fault.

I doubt it will matter in this case. "Good faith" is something that USCIS wants to see proven, rather than disproved. From what the OP says, it sounds like there's practically no evidence that a genuine marital relationship ever existed here. If she can lift conditions with the evidence she's got, then the rest of us should be able to do the same by simply penning an affidavit on a Denny's napkin, having the waitress witness the signature, and sending it off to USCIS!

"Good faith is something that USCIS wants to see proven, rather than disproved" --- can you simplify that.

This is going to be a tough one, although a right immigration lawyer can make it work, or else chances are slim. The marriage lasted few months, with little or no evidence, also there maybe an accusation of fraud by the USC all this makes it tough. I think the USCIS and then the immigration court would look at the bonafide intent for an approval.

It will be surprising to see an immigration judge deny and have the OP removed for fraud.

It will be interesting to know from exp. immigration posters how much is enough to tip the scales for the OP, given the fact the marriage was short before and after the conditional green card.

[diadromous mermaid 36]

Ah yes, Jim, sorry I misspoke. The marriage did not subsist 2 years, but it did last 12 months while a visa was being processed, and then whatever time they were together once she arrived until the day she left him. My mistake. However, one must not lose sight of the fact that in order to get the CR-1, the relationship appeared bonafide.

It's a little premature to say that the alien can't provide enough evidence to support a bonafide marriage. Yes, indeed, she has aquired little since her arrival in the USA, but the marriage subsisted for 2 years, or she would not have been afforded CR-1 status. Now, whether that is enough to "tip the scales" or not, we can't know.

From the OP's info (which is limited) the marriage lasted a bit over 12 months. If it had been two years then it would have been an IR1 rather than a CR1 visa, and there'd be no question about lifting conditions. She'd already have her 10 year green card.

Also from the OP's info, it appears the couple cohabited for a very short time. Even if they co-mingled some assets and liabilities during the time they were married, there's a good chance USCIS is going to conclude that the period of time they actually lived as a married couple was quite short. I'm not saying there's no way she can lift conditions - anything is possible, and there's much we don't know. From what we've been told so far, however, I'm not confident it's possible.

[JimVaPhuong 4,863]

Ah yes, Jim, sorry I misspoke. The marriage did not subsist 2 years, but it did last 12 months while a visa was being processed, and then whatever time they were together once she arrived until the day she left him. My mistake. However, one must not lose sight of the fact that in order to get the CR-1, the relationship appeared bonafide.

It's a little premature to say that the alien can't provide enough evidence to support a bonafide marriage. Yes, indeed, she has aquired little since her arrival in the USA, but the marriage subsisted for 2 years, or she would not have been afforded CR-1 status. Now, whether that is enough to "tip the scales" or not, we can't know.

From the OP's info (which is limited) the marriage lasted a bit over 12 months. If it had been two years then it would have been an IR1 rather than a CR1 visa, and there'd be no question about lifting conditions. She'd already have her 10 year green card.

Also from the OP's info, it appears the couple cohabited for a very short time. Even if they co-mingled some assets and liabilities during the time they were married, there's a good chance USCIS is going to conclude that the period of time they actually lived as a married couple was quite short. I'm not saying there's no way she can lift conditions - anything is possible, and there's much we don't know. From what we've been told so far, however, I'm not confident it's possible.

Agreed. It passed the 'smell' test for the consulate, but they seem to have different standards than USCIS applies for lifting conditions. They account for the fact that some things might not be practical or even possible when you're forced to maintain two residences in two countries, and spend most of your time apart. The consulate seems to focus on whether the relationship is sincere, while USCIS seems to focus on whether the couple are living like a married couple. It seems like this couple was able to convince the consulate that the relationship was sincere, but they weren't able to live together for very long.

OP says that her mother arrived two months ago, and also says that her mother has been living with her for two months. It sounds like the "living like a married couple" stage lasted a matter of days. If she decides to try to lift conditions then she's going to have to explain this to USCIS. If I were an IO, my first suspicion would be that the dramatic event that caused this marriage to fail so rapidly was the fact that the applicant was now in the US with a green card. It would take something really extraordinary for me to believe that the marriage was sincere before it spontaneously imploded. Something like "He met me at the airport with shackles in one hand, and a baseball bat in the other. It took a SWAT team to rescue me from the pit in the cellar."

[3600rs 24]

As Mermaid said the CR1 was approved for bonafide reasons. The standards for removal of conditions in this case will be higher. The 751 will mostly be filed as a waiver, and then inspected with high standards presuming fraud. It maybe denied too. But will it stand in front of the courts without any backing evidence of fraud in the hands of the CIS trial attorney. To have the OP removed for fraud the CIS should have real convincing evidence . Take note, its not rare to have a marriage end shortly after the green card and have conditions removed.

[Flavia 1]

Thanks again to everyone!

As far as the lifting of conditions goes, I'm not even concerned about it right now. The marriage hasn't lasted long enough for them to be able to accumulate any joint assets (besides a cell-phone!). There hasn't been any voilent behavior from his part either. So assuming that USCIS presumes that every marriage is potentially fraudulant, there's just no way for mom to prove the USCIS otherwise. My husband and I are going through this now, and even though we have tons of "proof", they still put you through the grill

Let's see, maybe in two years there will be grounds for her to request political asylym in the US, looking at the way things are going back where she came from... In any case, she doesn't mind having to go back either now, or in two years. As long as she doesn't get blamed for a fraud that she had nether committed (I mean marrying just to get to the US).

Really, it seems kind of unfair that, had she married someone from, let's say, a less developed country and then split days after arriving there, people would not be inclined to think that the marriage was a fraud

But we did speak to a lawyer, and were relieved to hear that the court and the USCIS are very unlikely to take this matter as far as getting her deported right now, after they get divorced, before her conditional GC expires. The lawyer said that there are plenty of cases where people come on K- or -CR-visas and separate days after arrival just because of "irreconcilable differences..

Edited July 10, 2009 by Kitties

[JimVaPhuong 4,863]

Thanks again to everyone!

As far as the lifting of conditions goes, I'm not even concerned about it right now. The marriage hasn't lasted long enough for them to be able to accumulate any joint assets (besides a cell-phone!). There hasn't been any voilent behavior from his part either. So assuming that USCIS presumes that every marriage is potentially fraudulant, there's just no way for mom to prove the USCIS otherwise. My husband and I are going through this now, and even though we have tons of "proof", they still put you through the grill

Let's see, maybe in two years there will be grounds for her to request political asylym in the US, looking at the way things are going back where she came from... In any case, she doesn't mind having to go back either now, or in two years. As long as she doesn't get blamed for a fraud that she had nether committed (I mean marrying just to get to the US).

Really, it seems kind of unfair that, had she married someone from, let's say, a less developed country and then split days after arriving there, people would not be inclined to think that the marriage was a fraud

But we did speak to a lawyer, and were relieved to hear that the court and the USCIS are very unlikely to take this matter as far as getting her deported right now, after they get divorced, before her conditional GC expires. The lawyer said that there are plenty of cases where people come on K- or -CR-visas and separate days after arrival just because of "irreconcilable differences..

You'll find a lot of arm-chair quarterbacking here, and that's kind of what we were doing with regard to your mom's adjusting status. It's sort of like tackling the Sunday crossword puzzle! It's fun, and you learn a lot about the process by having to research your answers!

What the lawyer said was true - it's unlikely that USCIS is going to come after her unless something happens to attract their attention. As far as they are concerned, she isn't due to be heard from until her 2 year GC is coming up for expiration.

I don't know if the lawyer explained this to you, but here is the potential problem - your mom's green card technically becomes invalid as soon as the divorce is granted. Her green card is conditional, and the condition is that she remains married to her sponsor until the magical 90 day window when she can apply to remove conditions. If her husband (soon to be ex-husband) has any brains at all, he'll send a letter to USCIS immediately after the divorce withdrawing his support. At that point, USCIS will know about the divorce, and her green card becomes invalid.

Yes, it's unlikely they'll come looking for her to deport her, but there are a whole variety of otherwise benign events that could result in her being caught and reported to ICE. Even something as simple as a traffic ticket could be enough.

If your mother doesn't plan to apply for a waiver to withdraw conditions, then she should probably plan on going back to her home country after the divorce is over.

[diadromous mermaid 36]

I disagree. She entered on a CR-1, that it not incident to the marriage subsisting for 2 years. If she had entered as a K-3 and the marriage terminated then within 30 days she would technically be without status.

In her case, she will have the onus of proving that the marriage was bonafide 2 years after she arrived, or earlier if she chooses to file the waiver as soon as a divorce decree is available. No further evidence of a bonafide marriage can be accumulated after divorce, but that doesn't mean she has to file the waiver immediately.

I'd like to caution the OP to become familiar with Asylum requirements before resting on the idea that in a couple of years her mother could always file. There are limitations, in fact, one year as I know it, that exist for asylum cases.

Thanks again to everyone!

As far as the lifting of conditions goes, I'm not even concerned about it right now. The marriage hasn't lasted long enough for them to be able to accumulate any joint assets (besides a cell-phone!). There hasn't been any voilent behavior from his part either. So assuming that USCIS presumes that every marriage is potentially fraudulant, there's just no way for mom to prove the USCIS otherwise. My husband and I are going through this now, and even though we have tons of "proof", they still put you through the grill

Let's see, maybe in two years there will be grounds for her to request political asylym in the US, looking at the way things are going back where she came from... In any case, she doesn't mind having to go back either now, or in two years. As long as she doesn't get blamed for a fraud that she had nether committed (I mean marrying just to get to the US).

Really, it seems kind of unfair that, had she married someone from, let's say, a less developed country and then split days after arriving there, people would not be inclined to think that the marriage was a fraud

But we did speak to a lawyer, and were relieved to hear that the court and the USCIS are very unlikely to take this matter as far as getting her deported right now, after they get divorced, before her conditional GC expires. The lawyer said that there are plenty of cases where people come on K- or -CR-visas and separate days after arrival just because of "irreconcilable differences..

You'll find a lot of arm-chair quarterbacking here, and that's kind of what we were doing with regard to your mom's adjusting status. It's sort of like tackling the Sunday crossword puzzle! It's fun, and you learn a lot about the process by having to research your answers!

What the lawyer said was true - it's unlikely that USCIS is going to come after her unless something happens to attract their attention. As far as they are concerned, she isn't due to be heard from until her 2 year GC is coming up for expiration.

I don't know if the lawyer explained this to you, but here is the potential problem - your mom's green card technically becomes invalid as soon as the divorce is granted. Her green card is conditional, and the condition is that she remains married to her sponsor until the magical 90 day window when she can apply to remove conditions. If her husband (soon to be ex-husband) has any brains at all, he'll send a letter to USCIS immediately after the divorce withdrawing his support. At that point, USCIS will know about the divorce, and her green card becomes invalid.

Yes, it's unlikely they'll come looking for her to deport her, but there are a whole variety of otherwise benign events that could result in her being caught and reported to ICE. Even something as simple as a traffic ticket could be enough.

If your mother doesn't plan to apply for a waiver to withdraw conditions, then she should probably plan on going back to her home country after the divorce is over.

[3600rs 24]

Thanks again to everyone!

As far as the lifting of conditions goes, I'm not even concerned about it right now. The marriage hasn't lasted long enough for them to be able to accumulate any joint assets (besides a cell-phone!). There hasn't been any voilent behavior from his part either. So assuming that USCIS presumes that every marriage is potentially fraudulant, there's just no way for mom to prove the USCIS otherwise. My husband and I are going through this now, and even though we have tons of "proof", they still put you through the grill

The fraud presumption increases in steps for type of applications. The safest would be a joint petition with evidence. And at the other extreme would be a waiver with no evidence, coupled with fraud complaint.

Let's see, maybe in two years there will be grounds for her to request political asylym in the US, looking at the way things are going back where she came from... In any case, she doesn't mind having to go back either now, or in two years. As long as she doesn't get blamed for a fraud that she had nether committed (I mean marrying just to get to the US).

If you sincerely believe its not fraud, take help of an AILIA lawyer to help your mom.

Really, it seems kind of unfair that, had she married someone from, let's say, a less developed country and then split days after arriving there, people would not be inclined to think that the marriage was a fraud

The CIS is fair . The above happens regularly. Do all get deported. No! Only shameless acts of fraud with lots of evidence have to take the plane home.

But we did speak to a lawyer, and were relieved to hear that the court and the USCIS are very unlikely to take this matter as far as getting her deported right now, after they get divorced, before her conditional GC expires. The lawyer said that there are plenty of cases where people come on K- or -CR-visas and separate days after arrival just because of "irreconcilable differences..

True! A lawyer with the right strategy can get the conditions removed IF AND ONLY IF there is no opposing clear evidence of fraud. The evidence of fraud should overcome the good faith for a denial and furthermore a removal. Yes, the green card technically becomes invalid after divorce but your permanent resident status can only be revoked by an judge, most judges are fair. BTW you are allowed to work etc even if the green card has been revoked till the matter is not settled in higher court.

[3600rs 24]

I disagree. She entered on a CR-1, that it not incident to the marriage subsisting for 2 years. If she had entered as a K-3 and the marriage terminated then within 30 days she would technically be without status.

In her case, she will have the onus of proving that the marriage was bonafide 2 years after she arrived, or earlier if she chooses to file the waiver as soon as a divorce decree is available. No further evidence of a bonafide marriage can be accumulated after divorce, but that doesn't mean she has to file the waiver immediately.

I'd like to caution the OP to become familiar with Asylum requirements before resting on the idea that in a couple of years her mother could always file. There are limitations, in fact, one year as I know it, that exist for asylum cases.

Thanks again to everyone!

As far as the lifting of conditions goes, I'm not even concerned about it right now. The marriage hasn't lasted long enough for them to be able to accumulate any joint assets (besides a cell-phone!). There hasn't been any voilent behavior from his part either. So assuming that USCIS presumes that every marriage is potentially fraudulant, there's just no way for mom to prove the USCIS otherwise. My husband and I are going through this now, and even though we have tons of "proof", they still put you through the grill

Let's see, maybe in two years there will be grounds for her to request political asylym in the US, looking at the way things are going back where she came from... In any case, she doesn't mind having to go back either now, or in two years. As long as she doesn't get blamed for a fraud that she had nether committed (I mean marrying just to get to the US).

Really, it seems kind of unfair that, had she married someone from, let's say, a less developed country and then split days after arriving there, people would not be inclined to think that the marriage was a fraud

But we did speak to a lawyer, and were relieved to hear that the court and the USCIS are very unlikely to take this matter as far as getting her deported right now, after they get divorced, before her conditional GC expires. The lawyer said that there are plenty of cases where people come on K- or -CR-visas and separate days after arrival just because of "irreconcilable differences..

You'll find a lot of arm-chair quarterbacking here, and that's kind of what we were doing with regard to your mom's adjusting status. It's sort of like tackling the Sunday crossword puzzle! It's fun, and you learn a lot about the process by having to research your answers!

What the lawyer said was true - it's unlikely that USCIS is going to come after her unless something happens to attract their attention. As far as they are concerned, she isn't due to be heard from until her 2 year GC is coming up for expiration.

I don't know if the lawyer explained this to you, but here is the potential problem - your mom's green card technically becomes invalid as soon as the divorce is granted. Her green card is conditional, and the condition is that she remains married to her sponsor until the magical 90 day window when she can apply to remove conditions. If her husband (soon to be ex-husband) has any brains at all, he'll send a letter to USCIS immediately after the divorce withdrawing his support. At that point, USCIS will know about the divorce, and her green card becomes invalid.

Yes, it's unlikely they'll come looking for her to deport her, but there are a whole variety of otherwise benign events that could result in her being caught and reported to ICE. Even something as simple as a traffic ticket could be enough.

If your mother doesn't plan to apply for a waiver to withdraw conditions, then she should probably plan on going back to her home country after the divorce is over.

I completely agree with your views mermaid.

Edited July 10, 2009 by 3600rs

[JimVaPhuong 4,863]

I disagree. She entered on a CR-1, that it not incident to the marriage subsisting for 2 years. If she had entered as a K-3 and the marriage terminated then within 30 days she would technically be without status.

In her case, she will have the onus of proving that the marriage was bonafide 2 years after she arrived, or earlier if she chooses to file the waiver as soon as a divorce decree is available. No further evidence of a bonafide marriage can be accumulated after divorce, but that doesn't mean she has to file the waiver immediately.

I'd like to caution the OP to become familiar with Asylum requirements before resting on the idea that in a couple of years her mother could always file. There are limitations, in fact, one year as I know it, that exist for asylum cases.

Section 216 of the INA:

(b ) Termination of Status if Finding that Qualifying Marriage Improper.-

(1) In general.-In the case of an alien with permanent resident status on a conditional basis

under subsection (a), if the Attorney General determines, before the second anniversary of the

alien's obtaining the status of lawful admission for permanent residence, that-

(A) the qualifying marriage-

(i) was entered into for the purpose of procuring an alien's admission as an immigrant,

or

(ii) has been judicially annulled or terminated, other than through the death of a spouse;

Strictly speaking, the divorce ends the validity of the conditional green card. You'll get pretty much the same info on many lawyer's websites:

http://www.hooyou.com/divorce/aftercgc.html

In other words, the general rule is that divorce terminates conditional permanent residence.

As far as what to do about it, and when to do it, the lawyers don't seem to be agreed. Some recommend dealing with the immigration status immediately after the divorce, and others say to deal with it in the 90 day window before the green card would have otherwise expired. If it were me, and I wanted to keep my immigration status, I think I'd deal with it right away rather than risk getting caught and deported.

[Marzy 1]

Thanks again to everyone!

As far as the lifting of conditions goes, I'm not even concerned about it right now. The marriage hasn't lasted long enough for them to be able to accumulate any joint assets (besides a cell-phone!). There hasn't been any voilent behavior from his part either. So assuming that USCIS presumes that every marriage is potentially fraudulant, there's just no way for mom to prove the USCIS otherwise. My husband and I are going through this now, and even though we have tons of "proof", they still put you through the grill

Let's see, maybe in two years there will be grounds for her to request political asylym in the US, looking at the way things are going back where she came from... In any case, she doesn't mind having to go back either now, or in two years. As long as she doesn't get blamed for a fraud that she had nether committed (I mean marrying just to get to the US).

Really, it seems kind of unfair that, had she married someone from, let's say, a less developed country and then split days after arriving there, people would not be inclined to think that the marriage was a fraud

But we did speak to a lawyer, and were relieved to hear that the court and the USCIS are very unlikely to take this matter as far as getting her deported right now, after they get divorced, before her conditional GC expires. The lawyer said that there are plenty of cases where people come on K- or -CR-visas and separate days after arrival just because of "irreconcilable differences..

Your mother is an adult. She knows what is next to be done. Good luck!

Edited July 10, 2009 by S*J

[diadromous mermaid 36]

Well, we read the statutes differently because Section 216 goes on to say

The Attorney General, in the Attorney General's discretion, may remove

the conditional basis of the permanent resident status for an alien who fails to meet the

requirements of paragraph (1) if the alien demonstrates that-

(B.) the qualifying marriage was entered into in good faith by the alien spouse, but the

qualifying marriage has been terminated (other than through the death of the spouse) and the

alien was not at fault in failing to meet the requirements of paragraph (1).

If the status by your interpretation is technically invalid as of the date of nullity or divorce, then the AG (Attorney General) would have no "conditional basis to remove" in such exceptions.

I disagree. She entered on a CR-1, that it not incident to the marriage subsisting for 2 years. If she had entered as a K-3 and the marriage terminated then within 30 days she would technically be without status.

In her case, she will have the onus of proving that the marriage was bonafide 2 years after she arrived, or earlier if she chooses to file the waiver as soon as a divorce decree is available. No further evidence of a bonafide marriage can be accumulated after divorce, but that doesn't mean she has to file the waiver immediately.

I'd like to caution the OP to become familiar with Asylum requirements before resting on the idea that in a couple of years her mother could always file. There are limitations, in fact, one year as I know it, that exist for asylum cases.

Section 216 of the INA:

(b ) Termination of Status if Finding that Qualifying Marriage Improper.-

(1) In general.-In the case of an alien with permanent resident status on a conditional basis

under subsection (a), if the Attorney General determines, before the second anniversary of the

alien's obtaining the status of lawful admission for permanent residence, that-

(A) the qualifying marriage-

(i) was entered into for the purpose of procuring an alien's admission as an immigrant,

or

(ii) has been judicially annulled or terminated, other than through the death of a spouse;

Strictly speaking, the divorce ends the validity of the conditional green card. You'll get pretty much the same info on many lawyer's websites:

http://www.hooyou.com/divorce/aftercgc.html

In other words, the general rule is that divorce terminates conditional permanent residence.

As far as what to do about it, and when to do it, the lawyers don't seem to be agreed. Some recommend dealing with the immigration status immediately after the divorce, and others say to deal with it in the 90 day window before the green card would have otherwise expired. If it were me, and I wanted to keep my immigration status, I think I'd deal with it right away rather than risk getting caught and deported.

Edited July 11, 2009 by diadromous mermaid

[3600rs 24]

[3600rs 24]

Thanks again to everyone!

As far as the lifting of conditions goes, I'm not even concerned about it right now. The marriage hasn't lasted long enough for them to be able to accumulate any joint assets (besides a cell-phone!). There hasn't been any voilent behavior from his part either. So assuming that USCIS presumes that every marriage is potentially fraudulant, there's just no way for mom to prove the USCIS otherwise. My husband and I are going through this now, and even though we have tons of "proof", they still put you through the grill

Let's see, maybe in two years there will be grounds for her to request political asylym in the US, looking at the way things are going back where she came from... In any case, she doesn't mind having to go back either now, or in two years. As long as she doesn't get blamed for a fraud that she had nether committed (I mean marrying just to get to the US).

Really, it seems kind of unfair that, had she married someone from, let's say, a less developed country and then split days after arriving there, people would not be inclined to think that the marriage was a fraud

But we did speak to a lawyer, and were relieved to hear that the court and the USCIS are very unlikely to take this matter as far as getting her deported right now, after they get divorced, before her conditional GC expires. The lawyer said that there are plenty of cases where people come on K- or -CR-visas and separate days after arrival just because of "irreconcilable differences..

Your mother is an adult. She knows what is next to be done. Good luck!

Well, let me remind you that even "all knowing" "very adult" immigrants need support from kin and good advice about immigration matters like this one.