IMMIGRATION ROUNDTABLE – Atty. Lourdes Santos Tancinco on Annulment

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THE COLUMNIST Atty. Lourdes Santos Tancinco

Dear Atty. Lou,
My cousin entered the United States as fiancé and got married within 90 days. She received her green card last March 22, 2015. They lived together for 9 month until they got into a big misunderstanding and decided to get annulment or divorce.
My cousin got hired last July 23, 2015 at Target. The question is after the annulment or divorce is granted is it possible that she can stay and continue working? My husband and I are willing to sponsor her to help her stay. She wants to fight to stay here and continue to work. Thank You!
Josie
Dear Josie,
Your cousin has a conditional resident status having been married for less than two years.  Since she received her green card on March 22, 2015, she will have a valid status until March 22, 2017.  Hence, her employment with Target is still considered as an authorized employment.
Before her expiration of 2017, she should be able to remove conditions of her residence. If she is divorced by that time, she should make sure that she does not obtain an annulment based on “fraud.” There is a difference between the “annulment” and divorce due to irreconcilable differences. Your cousin should make sure that if the U.S. citizen spouse files for annulment it is not based on the fact that the there was “fraud” in the marriage.  If the termination of the marriage is due to fraud, there is a strong probability that the green card status of your cousin will be revoked.
 In order to remove the conditions of the resident status and extend the green card beyond March 22, 2017, the non-citizen must prove that she entered into marriage in good faith. This means that the marriage was not entered to circumvent immigration law or simply for the purpose of getting the green card. She has the burden of proving that they intended to live a life together as husband and wife. While there is no hard and fast rule in determining what and how much evidence is necessary to prove a valid marriage, it is important to know what the immigration examiners are looking out for in determining fraud. As per U.S.C.I.S Adjudicator’s Field Manual, there is possible marriage sham if the following exist: (1) separate cohabitation; (2) disparity in age; (3) marriage between relatives; (4) no common language; (5) multiple prior marriages and (6) marriages arranged by third parties.  
The fact that there was a break down in the marriage, in itself, is not a ground to deny the grant of the waiver of joint filing. Divorce based on irreconcilable differences will be the appropriate way of terminating the marriage to avoid a finding of fraud.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her principal office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808; email at law@tancinco.com or check their website at www.tancinco.com or www.facebook.com/tancincolaw. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)

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