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Removal of Conditions Application Strategies

By March 31, 2021Immigration
marriage rings

Strategies to deal with removal of conditions application cases referred to removal proceedings.

I was placed in removal proceedings after USCIS denied my removal of conditions application for failing to attend my scheduled interview with my spouse. We did not attend because we had separated, and I feared that if I attended the interview, my case would be denied and that I would be deported. Is there anything I can do to keep my green card?

Yes, fortunately being placed in removal proceedings does not mean that you are getting deported. In fact, you will get a second opportunity to present your case before an immigration judge while also having an opportunity to file a new application with USCIS while you are waiting for your court hearings before the judge. We would need to determine based on your situation with your relationship as to the basis of a new filing.

For example, if you are getting divorced, it would be advisable that a new application be filed with USCIS requesting a waiver of the joint filing requirement based on a divorce. This second filing maybe important because an immigration judge can only review the basis for the original filing, so if you filed jointly, you would need to be married by the time your case is reviewed and if you are not, the judge cannot hear a new request asking for the waiver of the joint filing requirement until USCIS reviews the new request first.

I am not sure if I will be getting a divorce since there is still a chance we may get back together.

Unfortunately, you will need to decide how you want to proceed because the immigration judge will not give you an unlimited amount of time to decide. Regardless of what you ultimately decide, it may be a good idea to refile the removal of conditions application with USCIS based on one of the other grounds of the waiver of the joint filing requirement to see if USCIS approves the application on the waiver or if not at least preserves that basis for review by the Immigration judge. You can review our discussion on the waiver based on a divorce here. Review our discussion on the waiver based on abuse and cruelty or on hardship here.

How much time will the judge give me once I file the new application with USCIS?

The judge will likely give you as much time as USCIS needs to adjudicate the new application. Even if the new application is denied, you can file another application with USCIS while removal proceedings are pending. The problem is that if you file a third application, it now becomes unclear how much time the judge will give you since the immigration judge is not required to give you an unlimited amount of time although the judge is required to give you at least a reasonable amount of time for the second filing.

If USCIS grants my application, will I continue in removal proceedings?

Likely not. Once USCIS approves your second or subsequent applications, we can file a motion with the Immigration court to terminate your removal case.

In my case, what if my spouse and I decide not to divorce?

You want to take advantage of as many opportunities as possible to ensure approval of your case, so I would recommend refiling again with USCIS anyway while requesting continuances of any court hearings while the second application is pending. If the application is approved, we then file a motion to terminate proceedings. If it is denied, then you get a third opportunity before the immigration judge.

Is there any benefit in having the case heard before an Immigration Judge?

Yes, although a removal hearing maybe more intimidating it gives you and your attorney the opportunity to better control the presentation and testimony of the case simply by the fact that the hearing is focused on the questions your attorney asks you at the hearing. Compared to a USCIS interview where the officer controls the interview through the questions the officer asks. Furthermore, most judges have superior training and more experience in determining the issues in a removal of conditions application. As a result, a Judge is likely more open to hearing arguments and considering all circumstances surrounding a marriage compared to a likely more inexperienced immigration officer.

The bottom line is that you still have options, but you consult with one of our attorneys to explore the options in your case.

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