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  • Writer's pictureGeraldine Waxman, ESQ.

Immigration: Mediation Issues-Part 1

While you may have thought that immigration has nothing to do with mediation you may wish to rethink the possible problems engendered by someone who is within the mediation process but has "issues" related to immigration.

1. Divorce prior to an initial interview with immigration (USCIS) for lawful permanent resident status (LPR status or generically known as "green card" status). When couples who are married and where one party is a United States Citizen (USC) who has already filed for LPR status for their spouse (and perhaps that spouses children under 21), nothing has been attained until the initial interview has been conducted by USCIS and their case approved. Thus the immigrant, should divorce occur prior to the interview, retains their original status (whether lawful under other documents or illegal presence).

What to do: At the initial interview and/or intake the mediator might wish to find out if the parties are all legal residents/USC of the U.S. If not, are they aware of how divorcing might impact their status? No, it is not the "practice of law" for the mediator to be aware of this information and ensure that all parties are aware of their options and any consequences of any action they do or do not take.

2. Divorce post interview with USCIS. If at the time of initial interview with USCIS the parties have been married for less than two years the approval will be "conditioned" for an additional two year period. At the time of the end of the two year period the parties must show USCIS that the marriage is still intact for the LPR to receive "final" approval of LPR status.

This too is an issue should the parties decide to divorce prior to the two year period.

What then can the mediator do? Ensure that the parties are aware of their situation and the options and any consequences of any action they may be considering. Of course, if the marriage had been what USCIS considers a "real marriage" then the divorce prior to the two year period will probably be of no consequence. However, it behooves the mediator to make sure that the parties are aware of the possible need to look into this further.

Our next Immigration post will discuss attaining USC and domestic violence and the lack of support post divorce for an LPR seeking USC status (no matter the period of time).

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