One less hurdle for immigrants who got green cards through marriage — even after divorce

The U.S. Citizenship and Immigration Services (USCIS) has updated how it handles some conditional permanent residence permits issued to immigrants who marry U.S. citizens or legal permanent residents.

Green cards issued to foreign spouses are normally conditional, and are only valid for two years. After that time, immigrants can obtain permanent cards if the couple proves they did not marry just to get around U.S. immigration law.

But sometimes immigrants do not apply for a process known as a petition to “Remove Conditions on Permanent Residence Based on Marriage,” either because they have divorced or they simply forgot.

Up to now, if that happened and the immigrants wanted to apply for U.S. residence again because of a second marriage or other eligibility categories, they had to wait until an immigration judge affirmed the termination of their conditional permanent resident status (CPR) before they could file a new application.

“Because USCIS often did not send the information to the courts, these immigrants wound up in a terrible limbo: unable to renew their old residence or apply for a new one,” said attorney Elina Santana, a member of the South Florida branch of the American Immigration Lawyers Association (AILA).

“They could not travel and they did not have residence cards. At the practical level, it was like they were in the country illegally,” said Santana.

Read more about what it takes for an immigrant to get a green card — and not lose it

New policy guidance in the USCIS Policy Manual announced Thursday puts an end to some of that uncertainty in certain circumstances, clarifying when the agency may adjust the status of a foreign national whose CPR has been canceled.

The policy update establishes that an immigration judge “does not need to affirm the termination of CPR status before the alien can file a new adjustment of status application,” USCIS said in a news release.

“That means that a final order from a judge is not required to consider the first residence as canceled,” said Santana. “So those who qualify again for residence can apply directly to USCIS without the previous limbo.”

According to the Department of Homeland Security’s agency, petitioners can seek new permanent residence status if their CPR has been terminated and they meet one of three requirements:

▪ The immigrants have new basis for adjustment of status

▪ The immigrants are otherwise eligible to adjust status

▪ USCIS has jurisdiction over the application to adjust their status

Read more: It is hard for immigrants to get green cards and other benefits. These tools help.

The USCIS announcement also noted that the period lived by an immigrant in the United States under the previous CPR does not count toward the time required for obtaining U.S. citizenship through naturalization.

The federal agency added that the new guidelines apply to adjustment of status applications filed after Thursday, Nov. 21.

Read more: There’s a new hurdle for U.S. asylum seekers. This one involves work permits

How to apply to remove conditions on Permanent Residence

Under U.S. regulations, married couples who want to remove the conditional status from a green card to get full permanent residence must file Form I-751, Petition to Remove Conditions on Residence, during the 90 days before the second anniversary as a conditional resident.

That application generally requires an interview with a USCIS official. The interviews often make couples nervous because they are questioned, but these tips can help you prepare to avoid problems.

Immigrants also can file a “waiver of the joint filing requirement due to a termination of marriage,” by accompanying the application with several documents such as the final divorce or annulment decree.

For additional information, follow the official USCIS Instructions for Form I-751.

Daniel Shoer Roth is a journalist covering immigration law who does not offer legal advice or individual assistance to applicants. Follow him on Twitter @DanielShoerRoth. The contents of this story do not constitute legal advice.

Read more about legal and immigration issues in Spanish at AccesoMiami.com

This story was originally published November 23, 2019 at 2:03 PM.