3 Common Mistakes Made by Conditional Green Card Holders

Published: 22nd March 2012
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3 Common Mistakes Make by Conditional Green Card Holders

1: Waiting too long to apply for US Citizenship

It is possible to apply for U.S. citizenship when the joint petition or waiver to remove the condition on your green card is still not decided if you are otherwise eligible for naturalization (the U.S. citizenship application process).

If an immigrant received a green card through marriage and is still living with their spouse 3 years after the green card is initially issued, the immigrant will be eligible to apply for U.S. citizenship. Even when the green card is conditional because of the short duration of marriage, the immigrant does not have to wait until the conditional petition is decided to file for citizenship. Actually filing for U.S. citizenship will speed up the process of CIS deciding the conditional residency issue, as conditional residency will no longer be an issue if a person has already received U.S. citizenship and CIS can't hold up a naturalization case for this reason.

Many immigrants who are divorced or separated from their spouse may be eligible to apply for citizenship in 3 years from the date of initial residency grant (the date of issuance on the initial, conditional green card), not five years, which is the usual period necessary to wait to apply for citizenship in such circumstances. If an immigrant receives an approved waiver based on the extreme cruelty ground and is still living with the spouse, is divorced, or is not living with their spouse, then the immigrant is still eligible to apply for US citizenship after 3 years in lawful permanent residency status! Usually, conditional residency waivers do not take more than 1 year to decide and thus, it is unlikely that it will interfere with citizenship. However, the same general principles apply if for some reason the decision-making on waivers dramatically slows down over the coming years.

This special exception is a new change to the citizenship law, one many local CIS officers are not aware of or do not understand. Always hire an experienced immigration attorney if you can afford it at least for the interview to make sure the case is not denied due to lack of knowledge regarding this exception!

2: Traveling outside of the U.S. with an expired green card

To ensure re-entry into the U.S. upon departure after the green card expires, the immigrant should have proof of continued lawful permanent residency stamped in their passport by CIS after receipt of proof of filing of the joint petition or waiver if their local office allows it. Otherwise, always travel with your current passport, expired green card, and copy of the I-751 receipt notice proving that your waiver or joint petition has been filed with CIS. This temporary stamp will be the evidence necessary for a port of entry CIS official to conclude that one is still a lawful permanent resident and should be allowed re-entry into the U.S.

Many times, immigrants and their spouses forget to file to remove the condition within the 90 day period and are already outside of the US on vacation when their card expires. It is still possible to file to remove the condition from outside of the US if you can prove that the late filing was due to a justifiable excuse. Focus on what was going on in your life at that time that caused you to forget and document it well. It is within CIS's prerogative to waive the late filing, after it is requested by the applicant.

3: Appealing the denial of a waiver and trying to add new grounds

An appeal of a joint petition denial can only be reviewed by an immigration judge in a removal/deportation hearing (immigration court). However, in certain cases, a person who has been denied a joint waiver may be able to file for a waiver after the denial of the joint petition even if CIS has already officially terminated conditional residency status. This waiver may be filed up until the time the immigrant is placed in a deportation/removal hearing. Similarly, for a waiver petition, the petition can be renewed in immigration court but only on the ground that the waiver was applied for (i.e., extreme cruelty, extreme hardship, or good faith marriage). You have the option of re-filing under another ground in most circumstances and the Immigration Court is able to provide you with more time to do so, if the judge agrees. You may also add another ground while your case is still pending with CIS before it is denied.

Removing the condition on residence is a complicated area of immigration law. Always consult an experienced immigration attorney to determine what options, if any, are available to you.

Attorney Heather L. Poole practices family-based U.S. immigration law in Pasadena, California. She is a published immigration author and supervises abuse-based immigration cases at the Los Angeles Commission on Assaults Against Women. She is an active resource to the “Violence Against Women experts” list of the National Lawyers Guild, the National Network to End Violence Against Immigrant Women, and the National Domestic Violence Hotline. She can be reached at 626.432.4550 or heather@humanrightsattorney.com. For more information on the options available to abused immigrants, access www.humanrightsattorney.com.



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