Will divorcing affect wife’s immigration status?

Q. I want to get out of my marriage, but I have pity for my wife. I do not want her to lose her right to stay in the United States, but she is driving me nuts. How will divorce affect her immigration status?
I am a U.S. citizen. After we married, I petitioned for her, and the U.S. Citizenship and Immigration Services (USCIS) granted her conditional permanent residence. Then we filed jointly to remove the condition. Her temporary card will expire in August, but the USCIS has renewed her residence for an additional year. Our relationship has gone sour and I would like to file for divorce. What impact with that have on her permanent residence? Will it make a difference if I wait until she has been a conditional resident for a full two years?
- Michael Rodriguez, Manhattan

A. Because you already have filed form I-751, Petition to Remove the Conditions of Residence, separating or filing for divorce alone will not affect your wife’s immigration status. However, if the divorce were to become final before the USCIS removed the condition, she would need to file a new petition, applying as a self-petitioner. At least that is the USCIS position on this matter.
In addition, the USCIS says you should notify it if separation or filing a divorce action occurs. Waiting until your wife has two years conditional residence shouldn’t affect her case.
If you want to make things easier for your wife, wait on filing a divorce action until the USCIS grants her permanent residence without condition.

Will one FBI name check be okay?
Q. When I apply for my permanent green card, will I need to go through another FBI name check? If so, is it just for me, my husband, or both of us?
I applied for permanent residence through sponsorship from my U.S-citizen husband. Recently, the USCIS sent me my two-year conditional green card. It took a while because of the FBI name check.
- J., Manhattan

A. You will not need to pass a new FBI clearance, but the USCIS will do criminal background checks on you and your spouse before it removes the condition from your permanent residence. That is different than the FBI check. It is unlikely, however, that you will encounter lengthy delays.
When you and your spouse applied for her permanent residence, the USCIS sent your name and fingerprints to the FBI for a security check.
According to USCIS spokesperson Shawn Saucier, the USCIS also did a criminal background check on your husband. That check is to insure that he had not committed certain crimes against a minor. The check on a petitioner in a family immigration cases is required by the Adam Walsh Act, a law designed to protect minors from sexual abuse. Under the act, a U.S. citizen or permanent resident convicted of certain offenses against a minor is barred from petitioning for a fianc/(e), spouse, child or parent unless the USCIS grants a special waiver.
When you and your husband file USCIS form I-751 to remove the condition from your residence, the USCIS will do a second criminal background check, but the results rarely affect the decision on the I-751 and shouldn’t take long.

Father died, is his petition valid?
Q. My father died before his unmarried sons got permanent residence. The USCIS approved the petitions he had filed for them, but four years later, he died before my brothers got to the front of the line for their green cards. Do they have hope of getting permanent residence based on our father’s petition?
- Sarmin, New York

A. Your brothers may be able to get their residence based on your father’s petition. That is because the USCIS approved your father’s petition before he died. To get their residence, they must convince the USCIS that they deserve permanent residence for humanitarian reasons.
Normally, when a petitioner dies, the petition usually dies as well. The law allows for reinstatement of the petition where the USCIS has approved the petition AND the beneficiaries of the petition - here, your brothers - deserve permanent residence. In deciding whether to reinstate the petition, the USCIS will consider hardship to your brothers’ family members who are U.S. citizens or lawful permanent residents, their age and health, and their ties to the U.S.
Allan Wernick is a lawyer and chair of the City University of New York Citizenship and Immigration Project. He is the author of “U.S. Immigration and Citizenship - Your Complete Guide, Revised 4th Edition.” Send questions and comments to Allan Wernick, Daily News, 450 West 33rd Street, New York, N.Y. 10001. Professor Wernick’s web site is www.allanwernick.com.

Allan Wernick’s Immigration column is reprinted from the Thursday, July 24 editions of the New York Daily News.

More from Around New York