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Wilton A. Person
Wilton A. Person, Immigration Lawyer
Category: Immigration Law
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Experience:  Knowledgeable and experienced immigration lawyer.
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My father gained his conditional green card through marriage

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My father gained his conditional green card through marriage with a US citizen. He file for his I751 join petition since march 2011. they took more than two years to send an interview. Now he has an interview with her on July 11. The problem is that they are getting divorce since march 2012. Their divorce is not finalized. What is the advices in cases like this? I am becoming a citizen in a few months. Can I file a petition for him? Also my sister is in the joined I 751 with my father. She gained her residence card through him because she was under age. She is married now with a Citizen. Should she start a new process with her husband?
Your father has viable options at his disposal. He could file a waiver of the joint filing requirement for the I-751 based the pending divorce. However, it would be necessary to inform USCIS of the divorce and your father would not be eligible to obtain lawful permanent resident status until his divorce is final. In any event, it would not be a wise decision even his wife is in agreement to continue the process when the marriage is failing.

Nevertheless, you would be able to file a petition for your father as a U.S. citizen because he initially entered the United States legally.However, it is important that your father continue with his current I-751 process because if approved, he would have his lawful permanent residence status without you spending money and time on a subsequent application.

It may a good idea to consult and retain an immigration attorney to assist your father with his USCIS process because it is critical that the procedures are followed exactly to ensure that he is on track to obtain his green card.

Please let me know if you have any additional questions.

Customer: replied 4 years ago.

Should he go to the interview by himself? what about my sister? should she start a new process with her US citizen husband? if so, she has to withdraw herself from the current joined I751 that she is together with my father?

He could go without his wife if the marriage is not likely to be saved but it would probably be a good idea for him to retain an immigration attorney to prepare a request for the waiver prior to the interview to avoid delaying the process.
USCIS have some discretion to continue or resolve applications but an experienced immigration attorney can be a great benefit.

Your sister could essentially allow her husband to be a back up plan because a new application without a final resolution of the pending I-751 would be delayed. However, your sister may no longer be eligible to receive removal of conditions because of her marriage but there must be final decision on her application as well.

This is a situation that requires the expertise of a legal professional because your father's divorce and sister's marriage have taken the case off of his normal course but not to the extent that they would not eventually obtain green cards.
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