Re-entry after divorce

[Darnell 8,479]

Well, we will follow this thread and see what happens. I agree to you in many ways Jim. Thanks for ur response.

I think many of your points are wrong, based on WHERE the LPR person is currently residing. Sure, if in USA, I agree with you. Since LPR is in China ? Sorry, not agree with you at all. is different 'point-of-view', based solely on 'physical presence' of the LPR.

any entry in the 'puter at CBP? She won't be allowed into the country. If you have other data, please review it, let us know what you found?

Edited July 17, 2010 by Darnell

[3600rs 24]

I think many of your points are wrong, based on WHERE the LPR person is currently residing. Sure, if in USA, I agree with you. Since LPR is in China ? Sorry, not agree with you at all. is different 'point-of-view', based solely on 'physical presence' of the LPR.

any entry in the 'puter at CBP? She won't be allowed into the country. If you have other data, please review it, let us know what you found?

You are free to disagree with my opinion. Whether she will be allowed or not solely on the fact of divorce is a matter of debate. I have well reviewed data on my research, I will let you investigate more for your own good.

In a recent memorable experience a person was allowed in with smile by the CBP after divorce, her Notice of Hearing in her mail, her Green card terminated when she was abroad, she went on getting the 10 year card after filing the waiver. Judge terminated proceedings, ICE counsel never said a word. I will leave it at that.

Do not be sorry for anything, this is a free forum, you entitled you an opinion which you have expressed.

Edited July 17, 2010 by 3600rs

[Darnell 8,479]

thanks for the 'other data' -> In a recent memorable experience a person was allowed in with smile by the CBP after divorce, her Notice of Hearing in her mail, her Green card terminated when she was abroad, she went on getting the 10 year card after filing the waiver. Judge terminated proceedings, ICE counsel never said a word. I will leave it at that.

can vette , on this 'memorable experience' -

--where the divorce was filed? (outside usa vs in usa)

--come back from trip after divorce was finalized, or not ? (filing never same time tick as finalized)

TIA !

Edited July 17, 2010 by Darnell

[gulliver 0]

Darnell Thanks for all your help in the past and now. Here are a few thoughts if you look at the link there's some good stuff to include about filing from abroad which is ok and you must return for the interview so why would they not let you in.If you can file the I-751 waiver only if you are divorced then is is CLEAR and obvious that divorce does not terminate the status!

Here is a link to the law.

http://law.justia.com/us/cfr/title08/8-1.0.1.2.20.html#8:1.0.1.2.20.0.1.3

As far as I know there is nothing in the law saying that divorce does not terminate the card because the law says the marriage must be terminated to file the I-751 waiver.

Laws are not written that way.

There is nothing in the law that says if the US spouse dies that the status is terminated, either. But there is a provision in that law that says if the spouse dies you can file a waiver.

Gulliver

[3600rs 24]

Gulliver: great link thanks. Take guidance of a legal immigration expert. Good Luck.

Darnell: Will put this topic to rest. Thanks for the information.

[Kathryn41 3,205]

You might want to consider how this part of the Immigration Act will be interpreted if she is divorced and has left the country:

http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act

(Part a) talks about establishing conditional residency for spouses and children of US citizens married for less than 2 years, then leads into part b)

(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;

(2) Hearing in removal proceeding.-Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.

It seems that once the Attorney General determines that the marriage has ended before the second anniversary, the conditional green card status is also terminated. If the individual is still in the country, then they can ask for a decision at the deportation hearing - but if the individual is not in the country there is no need for a deportation hearing. The information about the hardship waiver is listed here:

(4) Hardship waiver.-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- (A) extreme hardship would result if such alien is removed, <a title="act216c4A" id="0-0-0-3711" name="0-0-0-3711"> (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), or

© the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the requirements of paragraph (1).

In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis. The Attorney General shall, by regulation, establish measures to protect the confidentiality of information concerning any abused alien spouse or child, including information regarding the whereabouts of such spouse or child. In acting on applications under this paragraph, the Attorney General shall consider a ny credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.

If the individual has already left the country, then it seems possible that the Attorney General will have no reason to intervene as there is obviously no hardship for the individual to leave the country.

[JimVaPhuong 4,863]

Darnell Thanks for all your help in the past and now. Here are a few thoughts if you look at the link there's some good stuff to include about filing from abroad which is ok and you must return for the interview so why would they not let you in.If you can file the I-751 waiver only if you are divorced then is is CLEAR and obvious that divorce does not terminate the status!

Here is a link to the law.

http://law.justia.com/us/cfr/title08/8-1.0.1.2.20.html#8:1.0.1.2.20.0.1.3

As far as I know there is nothing in the law saying that divorce does not terminate the card because the law says the marriage must be terminated to file the I-751 waiver.

Laws are not written that way.

There is nothing in the law that says if the US spouse dies that the status is terminated, either. But there is a provision in that law that says if the spouse dies you can file a waiver.

Gulliver

I already pointed out 8 CFR 216 to you, though I didn't provide a link. I also pointed out 8 CFR 239.2, which says they can CANCEL the notice of intent if they determine that the immigrant is outside the US at the time. In addition, I pointed out INA 216(b), which specifically says that they WILL terminate the conditional permanent residency if they discover the divorce. If you'd like the relevant links:

8 CFR 216.3:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-22009/0-0-0-22029.html#0-0-0-14593

8 CFR 239.2:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-23177/0-0-0-23239.html#0-0-0-14641

INA 216(b): (you'll have to scroll down to (b) to find it)

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4223.html#0-0-0-212

You need to think carefully about what you are saying. A waiver is not simply an option. When you ask for a waiver then you are asking for an exception to be made - for a requirement to not be applied in your case. In this case, the requirement is for an I-751 to be jointly filed with the US citizen spouse. When a conditional permanent resident is divorced then they are no longer able to meet this requirement. They have to ask USCIS to waive the requirement, and allow them to prove to USCIS that they entered the marriage in good faith.

The death of the US citizen spouse is a specific exception to the enforcement of termination. INA section 216(b)(1), which I pointed out, says "has been judicially annulled or terminated, other than through the death of a spouse;".

[Darnell 8,479]

gulliver - might be a good time to check in with Marc Ellis, an immigration attorney who specialises in casefiles for Guangzhou and HCMC. His contact info is here - http://www.visajourney.com/forums/user/6473-ellis-island/

Suggest you engage him for a few hours, get some paid advice. If he can't help you, he can give you a referral to someone with more specialisation .

[gulliver 0]

Hey Jim you make some great points thanks However I think that the canceling of notice to appear not "intent" does not apply. Also I feel that the waiver is an option for all who have divorced and entered in there marriage in good faith but it did not work out. The question of the day remains do I buy her a ticket it sounds like a ####### shoot. You know that the CBP officers don't know all this law And i am nervous of that

Thanks

John

[JimVaPhuong 4,863]

Hey Jim you make some great points thanks However I think that the canceling of notice to appear not "intent" does not apply. Also I feel that the waiver is an option for all who have divorced and entered in there marriage in good faith but it did not work out. The question of the day remains do I buy her a ticket it sounds like a ####### shoot. You know that the CBP officers don't know all this law And i am nervous of that

Thanks

John

CBP officers are not immigration attorneys, but you can bet they are trained in the laws they are required to enforce.

The notice of intent is a notification that they're going to terminate the permanent resident status. The notice to appear is a notification that they've terminated the permanent resident status, and the case is being handed to an immigration judge for deportation. Why would they require USCIS to send a notice of intent to an alien outside the US, and then specifically NOT require them to send a notice to appear? Isn't it a little counter intuitive to think that they'd make this exception for an alien abroad at one step in the process and not in another?

Anyway, I think you can avoid this whole mess by having her file an I-751 from abroad. This IS allowed, according to 8 CFR 216.4. Read paragraph (4).

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-22009/0-0-0-22036.html#0-0-0-14595

This section says the alien must return to the US after filing in order to satisfy the interview requirements. It specifically talks about joint filing, but I presume the same requirements would apply for a self-petitioner. It also says that an alien who files from abroad, and subsequently returns to the US will be processed according to 8 CFR 235.11.

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-22466/0-0-0-22750.html#0-0-0-14623

However, section 235.11 only specifically says how CBP will handle entry if the alien's conditional residence has expired, and not how to handle it if the conditional residence was administratively terminated. Unfortunately, you don't know what her current status is with any certainty, and I don't think they have to notify either of you if she is abroad. On the other hand, if she files an I-751 then that should at least let you know her current standing. If her status has been terminated, then the I-751 will probably be denied on that basis. If it's approved, and the interview is waived, then she'll get a 10 year green card. If it's approved, but an interview is scheduled, I would think that the temporary status granted by the accepted I-751 should allow her to re-enter the US using her current green card. Any question CBP had about her marital status would be moot after the I-751 was accepted by USCIS.

Anyway, we're feeling around in the dark here because this is a scenario we haven't seen before, so we're not sure what's going to happen. It would be a very good idea to talk with several well qualified immigration attorneys about this, and don't just go with the first attorney who tells you what you want to hear. Make sure they can demonstrate how the law backs up their opinion.

[gulliver 0]

Thanks Jim Thats great advice I'll keep you all posted

Gulliver

[gulliver 0]

Okay after considering all the facts It was determined that her green card was still valid. So I bought the ticket she arrived day before yesterday sailed through customs and no questions about divorce. She is here, I am happy and hope we can make it work. Thanks all for all the good advice.

Gulliver

[TBoneTX 45,956]

Congratulations, si man!

[Darnell 8,479]

Okay after considering all the facts It was determined that her green card was still valid. So I bought the ticket she arrived day before yesterday sailed through customs and no questions about divorce. She is here, I am happy and hope we can make it work. Thanks all for all the good advice.

Gulliver

Yay !!! who's cooking today ?!??!?!

I'm actually really happy for you two - good luck with all !

[JimVaPhuong 4,863]

Okay after considering all the facts It was determined that her green card was still valid. So I bought the ticket she arrived day before yesterday sailed through customs and no questions about divorce. She is here, I am happy and hope we can make it work. Thanks all for all the good advice.

Gulliver

Awesome! I'm glad everything worked out for you.

Is she going to self-petition to remove conditions on the green card now?