Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Conditional Residency And Divorce

Marriage to a U.S. citizen is common path to permanent residency that can also present immigration problems if that marriage subsequently results in separation or divorce.

Under the Immigration and Nationality Act, noncitizen spouses and children of U.S. citizens obtain lawful conditional residency if, at the time they become residents, the qualifying marriage is less than two years old. Conditional residents have all the rights and privileges of lawful residency, such as, accrual of time towards naturalization, eligibility to file immigrant visa petitions for relatives, life in the U.S. permanently, the right to work, drive, study and travel.

However, as a result of conditional residency the noncitizen must jointly file with the petitioning spouse Form I-751 Petition to Remove the Conditions on Residence within 90 days preceding the second anniversary of the date he or she became a conditional resident. Proper filing within the mandatory time period extends the conditional residency pending adjudication by the Immigration Service, failure to properly file results in termination of status and possible referral to immigration court for removal proceedings.

In a perfect world the petitioning spouse and the noncitizen resident remain married and jointly file for the removal of the condition within the parameters stated above. In truth, many couples experience marital difficulties after the granting of conditional residency which include lack of cooperation by the petitioning spouse with immigration papers, physical and mental abuse, separation and even divorce. If one of these problems occurs as the noncitizen prepares to file for the removal of the condition, his or her immigration status may be placed in jeopardy unless he is aware of some basic rules.

The most basic rule guiding the filing of Form I-751 and the removal of the conditional status is that the form is meant to be a joint petition. A conditional resident may not file this form if the qualifying marriage has been terminated or the petitioning spouse is deceased or is uncooperative and will not sign the joint petition or will not attend an interview.

If a noncitizen is unable to file jointly then he or she must request a waiver of the joint filing requirement. A waiver is a request for forgiveness from the normal joint filing requirement. The problem is this waiver has over the years become more confusing due to a series of Immigration Service memos. The following are directives that are current as of this article.

If at the time of filing the removal of the condition the resident has a final order of divorce or dissolution the noncitizen may file for a waiver based upon one of three accepted grounds, namely, extreme hardship, good faith marriage, abuse.

Good Faith

In most cases, the conditional resident will file for a wavier based upon good faith. Here the noncitizen must show that he or she entered into the qualifying marriage in good faith at the marriage's inception. The applicant should submit extensive documentation to support the good faith commitment.

Extreme Hardship

Here the applicant must demonstrate that extreme hardship would occur to the noncitizen if the waiver is not granted and he or she is forced to leave the country. Hardship must be more than the normal results of departure and usually involve emotional, psychological, financial and educational problems.

Battered Spouse

The Immigration Act also provides for removal of the conditional status where a noncitizen is married to a petitioning spouse in good faith and can show that the spouse either abused the conditional resident or the resident's child or subjected them to extreme cruelty. Like the grounds of waiver preceding extensive documentation is necessary.

Confusion involving conditional residents usually arises when it is time to file within the ninety-day window and the couple is either separated or in the process of divorce and have not yet obtained a final dissolution. Because the Form I-751 requires a joint filing the Immigration Service has tried to shed some light on what should be done.

In a series of memos the Immigration Service attempted to clarify this situation. The Immigration Service has stated that if the initial I-751 was filed jointly but the couple subsequently files for divorce and the divorce is granted a new I-751 must be filed and the noncitizen should withdraw the initial petition.

In addition, if the couple is separated and not divorced the Immigration Service does not prohibit jointly filed petitions so the petitioning spouse, though not living with the noncitizen, may file for the removal as long as the marriage was entered into in good faith. If the conditional resident is separated and not divorced, the I-751 cannot be filed based upon divorce and good faith.

If you are subject to conditional residency and unable to file jointly the removal of the condition, seek competent legal advice as you navigate what can be a very confusing road.

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