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petjeff

Visa expiring & divorced

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Hello and thanks in advance for any helpful advice.

My girlfriend was living in the Philippines up till 2 years ago, she met another man from the US, came here and got married together here. She applied and received her 2 year conditional resident status. They're now just recently divorced. We met about 8 months ago after they separated. We are in love and have talked about possibly getting married soon. I'm aware that she needs to apply for a 10 year permanent resident status real soon.

My question is if it's very important for her to have documents proving her original marriage was legitimate. She did live with him over a year, however sense it's been awhile, she has no paperwork that shows her name at his address. They had a joint bank account but don't any longer. They also filed a joint tax return last year, but she doesn't have the paperwork. What she does have is lots of pictures of them together, including the wedding. Is that enough? If we were to just quickly get married before she files for the permanent status would she still be required to have documents proving the first marriage was not a sham?

Jeff

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It's unclear why you think the CIS will think her marriage was a sham in the first place.

I should think they had an interview before someone granted her conditional residency status in the first place. Didn't they?

Your girlfriend needs to consult with a local immigration attorney; messing about with this as though it were a DIY home improvement project is a terrible idea.

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The reason is because I read this, which I believe say's that when she applies for permanent status she will have to prove her marriage was not just to get into the US, unless i read it wrong:

"How will a divorce affect the issuance of my conditional green card?

Aliens who obtain their permanent residence based on their

relationship with a U.S. citizen spouse or an alien parent's U.S.

citizen spouse are granted conditional permanent residence if the

qualifying marriage took place within two years prior to the date

permanent residence was conferred. Conditional permanent residence

means that the permanent residence is subject to termination if it is

found that the qualifying marriage was a sham marriage or a marriage

that was entered into only for purposes of obtaining an immigration

benefit. Other than the conditional permanent resident being subject to

having his status terminated, he is afforded the same rights as is any

other permanent resident. Within ninety days before the two-year

anniversary of the permanent residence being granted to the alien, the

alien and spouse must apply to have the condition removed.

When permanent residence is granted conditionally to an alien

spouse, that conditional permanent residence may be terminated within

two years from the date permanent residence was granted if the marriage

has been terminated through divorce. This rule also applies to the

child of the alien spouse who obtains his conditional permanent

residence based on the marital relationship of his parent. In other

words, the general rule is that divorce terminates the conditional

permanent residence. Nevertheless, in this scenario, it is possible for

the alien to obtain a waiver of the termination. A waiver of the

termination is granted to the alien if the alien can show that the

marriage was a union in good faith and if the alien was not at fault

for his failure to file the joint petition to remove the condition.

Generally speaking, if the conditional permanent resident can show that

the marriage was entered into in good faith, it is presumed that he was

not at fault for failing to file a joint petition. Two ways to show

that a marriage was entered into in good faith are proving that the

couple had a child together and producing evidence that the couple

owned property jointly."

From: http://www.divorcenet.com/states/new_jersey/immigration_and_divorce

Jeff

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To Fallen: The burden is always on the applicant in a marriage case to prove that the marriage is not a sham marriage. Especially here when the couple divorced before the alien spouse has filed the required I-751 to remove the condition on the 2-year green card.

Jeff,

Your marriage to her is irrelevant as far as her green card. Even if she were an illegal alien crossing the border to the U.S., she (and you) are free to marry anyone she chooses. It doesn't matter how fast or how slow she marries you as far as removing the condition on her 2-year conditional permanent residence in order to make it permanent (it is NOT a 10-year permanent residence as popularly misunderstood, it is permanent permanent, 10-year is only the nominal time to renew the card, but the permanent residence is forever).

To remove the condition, the couple normally must file the I-751 Joint Petition together to prove it's still a bona fide (real) marriage. If she's divorced, then she must apply for a waiver and still must prove the original marriage was bona fide. A few photos and a joint tax or account may be sufficient but will probably not be sufficient on a pro se (self-represented) case, especially on a difficult waiver case. agree with Fallen that monkeying around with this will lead to denial and your girlfriend will face removal proceedings.

It is highly recommended that your girlfriend contact competent immigration counsel to handle her case.

Larry L. Doan, Esq.

Be sure to visit my blog. http://GuruImmigration.wordpress.com

www.GuruImmigration.com (click on Contact Us)

Note: The above response is provided for legal information only and should

not be construed as legal advice, nor to create an attorney-client

relationship, which can only be established through payment of

consideration. We do not offer free advice except for the information provided herein on FindLaw Answers which has

been screened. If follow-up advice on your specific situation is

desired, please visit my website www.GuruImmigration.com for more details.

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