The flip side of marriage-based immigration is when the marriage goes sour.
For couples who have been married less than two years by the time the petition for permanent resident status is filed, the immigrant spouse gets what is known as conditional permanent residency for a period of two years. At the end of this two-year probationary period, the couple must show that the marriage is still intact to have the conditions removed and full permanent resident status granted to the immigrant spouse. If the sponsoring spouse refuses to help the immigrant spouse apply to remove these conditions, it becomes a much harder process for the immigrant spouse to obtain full permanent resident status on his or her own. During this two-year probationary period, then, the sponsoring spouse’s help to remove the conditions on residency can be used as a lever for the good behavior of the immigrant spouse.
Not infrequently, I get calls from men (and, so far, they have all been men) who, after jumping through the sometimes considerable hoops needed to get their fiancées or wives into the country legally, then become disenchanted with these women. Maybe the women are not as nice as they were when the couple was courting. Maybe the women used these men to get their green cards. Maybe the men expected someone more servile and grateful for the privilege of bringing them into the country and are unhappy to be confronted with a person with strong views and desires of her own who is unwilling to merely be a housewife, mother, and housekeeper. Whatever the reason, the marriage falls apart. And then, the men ask me, “Can I send her home?”
“No,” I tell them. “You don’t have the right to send her home. You have the right to tell Immigration that she has left you and that you don’t want to live with her any more, but you do not have the right to decide whether she stays or goes back home.” If the callers are interested in the why of this, I tell them that the decision as to whether someone who obtained immigration status through marriage gets full permanent residency depends on whether that marriage was entered into in good faith and not to obtain an immigration benefit. And a child born of that marriage is pretty strong, although not definitive, evidence that the marriage was entered into in good faith.
I also get calls from women, and occasionally from men, who are being threatened by their sponsoring spouse with being “sent home” if they don’t “behave.” And I tell them the same thing: “No, he does not have the right to send you home. That decision belongs to the government. But he does have the right to refuse to help you get your permanent green card. If you entered the marriage in good faith, you can apply for your permanent green card on your own and you may get it, if Immigration believes you.”
So, please, if you are thinking about filing a petition for a potential spouse, remember that while the decision to marry that person is yours, the decision as to whether that person can stay in America should you tire of him or her is not. You can save yourself the process of hiring an immigration lawyer to sort through such issues by thinking carefully before making such a decision. Please visit us at our address below if you have questions.
834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933