A Five Year Limit On when the Green Card can be Taken Away?

October 14, 2011 by Immigration Law Attorney Lena Korial-Yonan, Esq.

Many people are not aware that there is a five (5) year limit in which USCIS is limited in when it can take away or rescind someone's lawfully issued green card. In the new case decided by the Board of Immigration Appeals (BIA), the BIA held that indeed there is a 5 year window in which USCIS can rescind someone's green cards, but only under some circumstances does this protection extend to green card holders.

Basically under 8 U.S.C. Section 1256(a), the USCIS CANNOT take away or rescind someone's green card after five years. This statute is very important for green card holders who are in removal, and creative lawyering as well as reliance on that statute could very well save people from losing their green cards.

The BIA, however, has limited that statute to apply to cases only where the immigrant received his green card through adjustment of status in the U.S. If the immigrant received his green card through a U.S. Embassy, then this 5 year limit does not help those immigrants.

For example, in the case of Malik v. Att'y Gen. of the U.S., (3rd Cir. 10/7/11), the Court held that since the immigrant entered the U.S. through his wife petitioning for him through the U.S. Embassy, the USCIS could rescind his green card, despite the fact that the green card was issued over 5 years from the time when USCIS discovered that the immigrant has obtained his green card through marriage fraud.

The Immigrant in the noted case entered the U.S. in April of 1999 as a lawful permanent resident. His legal wife at the time petitioned for him through a U.S. consulate and his case was approved. Then in 2005, he was placed in removal proceedings under the accusation that he engaged in marriage fraud. [Interesting thing to note here for all people considering marriage fraud - do NOT do it, because as you see he was caught, six (6) years later, when he thought everything was good.]

In his defense to the removal proceedings against him, he through his attorney asserted that under 8 U.S.C. Section 1256(a), the USCIS can rescind his green card only within five (5) years of the date that he obtained his green card. However, the Court ruled that upon closer reading of the statute, this 5 year limit within which USCIS can rescind a green card applies only to green cards issued through adjustment of status and not through consular processing. Therefore removal proceedings were permitted to proceed against him, and eventually the Court ruled that he had engaged in marriage fraud because he never intended to create a life with his wife.

Please go to www.needimmigrationhelp.com and contact Lena Korial-Yonan, Esq. if you need help with this type of case.

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