How can I secure my green card?

Dear Mrs Walker-Huntington,

My brother went to the United States (US) over four years ago and he got married to a US citizen there. He then filed for his permanent residency, but was denied after an interview with himself and his wife. Months later, he got a letter from the US government stating that he had overstayed his time in the US and should leave the country immediately.

He is still working there and his work permit will expire soon, what can he do? Can he file for a divorce and remarry? If he remarries, does he stand a chance of getting his green card? Please help me to understand all the possible options. I eagerly look forward to your response.

-TT

Dear TT,

When a US citizen spouse files to adjust the status of their alien relative, that adjustment is granted based on the discretion of the adjudicating officer after an interview to determine that the marriage is valid for immigration purposes. At the interview, the couple has to prove the validity of the marriage by producing documents to show that they have commingled their assets and their liabilities and to answer questions to convince the officer that they know enough about each other to prove that they have shared their lives.

When the US Department of Homeland Security decides to deny the adjustment of status and tells you to leave the country and you fail to leave, you can expect to be referred to an immigration judge for removal from the US. During the removal hearing, you can renew your request for adjustment of status before the judge if the marriage is still viable, or choose to leave voluntarily. Depending on the circumstances of the alien and his family, prosecutorial discretion can also be requested of the government not to move forward with the case of removal/deportation against the alien.

It is important that the alien keeps the Department of Homeland Security and the Immigration Court informed of their address if it changes because if you do not and notification is sent to you that is not received by you, it will be deemed to be served. This can have disastrous effects as for example, if you were scheduled for a removal/deportation hearing and you fail to appear, the judge will order you removed/deported in your absence.

If your brother is already separated from his US citizen wife and he has a new love interest, he can divorce, remarry and refile. He can refile for an adjustment of status only if he is not already in removal/deportation proceedings. If he has been referred to the immigration court, initially he will only be able to refile the petition for alien relative. If the reason United States Citizenship & Immigration Services denied your brother's initial filing is marriage fraud, he must be aware that any allegation of marriage fraud will always be attached to the alien and will influence any subsequent filings. Additionally, when a first marriage petition is denied - even if there is no allegation of marriage fraud - any future petition filed by a spouse is going to be highly scrutinised and the same applies if you marry while in removal/deportation proceedings.

In your brother's situation, it is important that he contact an immigration lawyer as his situation is complex and tenuous.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal & personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walkerhuntington.com