Ask an Immigration Lawyer: My wife withdrew the visa petition

After 2 yrs of marriage my wife withdrew the visa petition because the immigration of statements made to her by the immigration officer. My wife and I are now separated. Can I still get my green card?

Aggie R. Hoffman: Preliminarily, let me say that your case is complex and can take many twists and turns. It will take the assistance of an experienced immigration attorney to assure success.

Immigration through marriage depends on whether your marriage is bona fide and not entered into solely for immigration ration purposes. For that fact to become a basis for obtaining resident status, a visa petition (I-130) must be approved. Without it, the case cannot move forward and you will likely be placed in removal proceedings before an Immigration Judge.

According to immigration regulations, a visa petition that has been withdrawn, may not be reinstated. On the other hand, nothing in the law prevents your wife from filing a new petition, even if you are separated. However, you will have an uphill battle in obtaining another approval, as the government is likely to put many obstacles in your path; you must expect to battle every accusation made.

The best way to do defend yourself is with documents. If you are still in good terms with your wife, she can be your best witness about what happened. The most effective approach is to have her put into writing the details of what happened with the immigration officer. Your wife should answer and explain the questions: when, where, what, how and why. You will also have to establish that the marriage was bona fide.

In addition to joint documents such as a lease, joint bills, joint bank accounts, tax returns and photos, you should get letters from your in-laws, neighbors, and friends.

It likewise crucial to obtain a copy of the petition withdrawal signed by your wife . It is unwise and not possible to defend a position without knowing the details of the facts contained in the withdrawal.

While your wife may remember what happened, she is not likely to know the legal basis or even all the details of what the officer said to her, and certainly not the content of the document she signed.

It is unlikely that immigration will give you a copy of the withdrawal. You should have your wife ask for a copy; she is entitled to it since she signed it.

The request should be in writing, and sent via certified mail, return receipt requested. She should keep a copy of the letter and the return receipt when she receives it. If her request is not granted, you should file for a copy pursuant to the Freedom of Information Act (FOIA). Unfortunately, it can take six months or longer for FOIA to reply.

If FOIA refuses the request, you will have to appeal.

It is likely that because of the I-130 withdrawal, you will be placed in removal proceedings in Immigration Court. To counter the government’s action, your wife may file a new I-130. There is no limit as to how many times a petition may be filed, as long as there is no divorce, or legal separation (one ordered by the court). You and your wife may be scheduled for another interview, which hopefully she will attend with you.

Of course, both in the second I-130 and at the interview, you must disclose that you are not currently living together. That should not be an obstacle to granting the I-130 since the central requirement is that your marriage was bona fide at inception.

In most cases it is also possible to obtain a continuance (deferment) of the removal hearing date until a decision is made on the second I-130. If the second I-130 is approved, the Immigration Judge has the authority to grant residence status.

CAVEAT: The above is not a complete legal analysis, does not constitute legal advice, nor should it be construed as such. For a case specific analysis, consult an experienced immigration attorney for a private and extensive review of the facts of your case.