The initial immigration step for a foreigner marrying a United States
citizen is the granting of conditional permanent residency. That
“conditional green card” however, is only valid for two years. In order
to remove that status and obtain permanent residency, the immigrant
husband or wife must petition for permanent status within three months
prior to the time that their conditional residency expires. This is done
through jointly filing of a Form I-751 petition.
Lately, several cases have been brought to my attention where the immigrant spouse legally separates or divorces before their conditional status lapses. Quite often the United States citizen husband or wife will be uncooperative in assisting with the I-751 petition, availing the immigrant spouse or former spouse to deportation proceedings. The USCIS has recognized this issue and permits the conditional permanent resident to request a waiver of the joint filing requirement if it can be established that:
1. Removal from the United States would result in extreme hardship
2. The conditional permanent resident entered the marriage in good faith, but the marriage was terminated other than through death
3. The conditional permanent resident entered the marriage in good faith, but the petitioning spouse or parent battered the conditional resident spouse or child
In the battery instances the waiver would be based on the hardship or battery and not on separation, divorce or annulment proceedings.
If the conditional resident fails to file for a waiver within 90 days of the date of the expiration of their conditional status, their conditional status is terminated. Once the I-751 is filed, the waiver applicant will be required to provide evidence that they married in good faith along with other supplementary evidence showing that the applicant is not committing fraud.
Should an I-751 petition be jointly filed by co-petitioners who are still legally married but are legally separated and/or are in pending divorce or annulment proceedings, a request for additional evidence usually issues with an 87 day response period. The applicant is specifically requested to provide a copy of the final judgment for dissolution of marriage or annulment along with a request that stating that he or she desires to have the joint filing petition treated as a waiver petition. Copies of divorce or annulment decrees are recommended to be certified copies that are easily obtained through the courthouse where the proceedings took place. In reviewing the I-751 petition, USCIS assesses all evidence of the bona fides of the marriage in good faith. Should issues arise in connection with the bona fides of the marriage, an in person interview may be required.
It is strongly recommended that the foreign spouse initiate appropriate legal proceedings for purposes of verifying divorce, legal separation or annulment. Without such proceedings pending or finalized, the chances of deportation rise dramatically.
Lately, several cases have been brought to my attention where the immigrant spouse legally separates or divorces before their conditional status lapses. Quite often the United States citizen husband or wife will be uncooperative in assisting with the I-751 petition, availing the immigrant spouse or former spouse to deportation proceedings. The USCIS has recognized this issue and permits the conditional permanent resident to request a waiver of the joint filing requirement if it can be established that:
1. Removal from the United States would result in extreme hardship
2. The conditional permanent resident entered the marriage in good faith, but the marriage was terminated other than through death
3. The conditional permanent resident entered the marriage in good faith, but the petitioning spouse or parent battered the conditional resident spouse or child
In the battery instances the waiver would be based on the hardship or battery and not on separation, divorce or annulment proceedings.
If the conditional resident fails to file for a waiver within 90 days of the date of the expiration of their conditional status, their conditional status is terminated. Once the I-751 is filed, the waiver applicant will be required to provide evidence that they married in good faith along with other supplementary evidence showing that the applicant is not committing fraud.
Should an I-751 petition be jointly filed by co-petitioners who are still legally married but are legally separated and/or are in pending divorce or annulment proceedings, a request for additional evidence usually issues with an 87 day response period. The applicant is specifically requested to provide a copy of the final judgment for dissolution of marriage or annulment along with a request that stating that he or she desires to have the joint filing petition treated as a waiver petition. Copies of divorce or annulment decrees are recommended to be certified copies that are easily obtained through the courthouse where the proceedings took place. In reviewing the I-751 petition, USCIS assesses all evidence of the bona fides of the marriage in good faith. Should issues arise in connection with the bona fides of the marriage, an in person interview may be required.
It is strongly recommended that the foreign spouse initiate appropriate legal proceedings for purposes of verifying divorce, legal separation or annulment. Without such proceedings pending or finalized, the chances of deportation rise dramatically.
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