I have my 2 years permanent resident card ( green card ) but my husband wants to get a divorce, will I lose my green card ?

Q: I came here on a k-3 visa. In the event of the divorce will I lose my visa and my green card or I can apply for 10 years green card and hopefully citizenship (my brother has USA citizenship) ?


A: Firstly, I will assume that at the time you entered the United States as a K3, you were not married with your husband for a period longer than 2 years. Therefore, you were subjected to the 2 years conditional residence that will soon end and you will have to submit an immigration form and evidence to end the conditional residence – after receiving a notice to take this action 90 days before your second anniversay. 

Normally, the husband and wife submit a joint signed form requesting the termination of the conditional residence with proof of the existence of the marriage sufficient to overcome any type of marriage fraud. 
If, as in your case, the United States Citizen spouse refuses to jointly sign the form but threatens the alien spouse with filing a divorce, the foreign spouse must request a waiver of the joint submision request explaining why. 

The only issue here is whether you and your spouse entered the marriage in a bona fide basis. If you did, you must indicate to the Immigration Authorities that the termination of the marriage was not your fault. 
Marriages end for many reasons that occur during the existence of the marriage even though the parties entered with the intent of being a husband and wife forever and to start a family. 

Immigration is not ignorant as to this reality and will not punish an innocent spouse for the termination of the marriage based on irreconcilable differences that arose during the marriage that could not be solved with the aid of  the court or marriage counseling. 

It will be denied if they have reasonable grounds to believe that this was a marriage entered solely for the purposes of obtaining an immigration benefity you were not entitled to. 

Your husband can help in this process if he is willing to set aside the differences that are at the present and in an affidavit ( which must be notarized) declare that the marriage was entered for good reasons but that the differences during the marriage made it impossible to continue. 

You can present evidence in the form of affidavits from common friends and family that can declare under the penalty of perjury that the marriage was valid in its inception but that it deteriorated at the end and it was not your fault that the marriage ended. 

Be aware of factors such as violence, infidelity and other things that can be considered a red flag for a shame marriage and that will indicate that you used your husband to get a benefit you were not entitled to. That will be a reason for the denial of the waiver and you loosing your permanent resident status. 

I recommend you to get a lawyer to assist you in the preparation of the waiver and collection of evidence and if needed to appear with you at any scheduled interview if they demand your presence.

Eliana Phelps

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