Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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The Effects of Separation and Divorce on Conditional Residency

By: Sean Carpenter

Recently a client came into my office unsure about what to do. She applied to become a permanent resident nearly two years ago based on her marriage to a U.S. citizen after they had been married for six months, and she was granted conditional residency. The ninety day window for her to apply to remove the conditions of residency was approaching, but recently her marriage had taken a turn for the worse. Her husband informed her that he was moving out of the house and would soon be filing for divorce. He told her that he would not help her in her application to remove the conditions of residency to become a lawful permanent resident. She was fearful that because he was unwilling to cooperate that she would lose her conditional residency and be left with no opportunity to become a permanent resident.

This is a common situation that many conditional residents go through. An alien who marries a U.S. citizen may apply to adjust status and become a lawful permanent resident. If the marriage is less than two years, they will be given what is known as conditional permanent residency. This type of residency lasts for two years. In order to remove the condition and become a lawful permanent resident, a request must be filed with U.S. Citizenship and Immigration Services. This request is made by filing the form I-751 and proper documentation within the ninety days prior to the two year anniversary of when the conditional residency was granted. When the couple is still married they file this application together in what is known as a joint petition. The majority of petitions to remove the conditions of residency are taken care of through a joint petition, and typically no interview is required. Problems arise, however, when you get divorced during the conditional period or your divorce is pending and the spouse refuses to participate in the joint petition.

If you are divorced at the time when you petition to remove the conditions of residency you may not submit a joint petition with your former spouse, even if the divorce was amicable. The way to become a permanent resident is to obtain a good faith marriage waiver. To do so, you must provide evidence to U.S. Citizenship and Immigration service that you are divorced by presenting a divorce decree. You must additionally provide any evidence available to prove that the marriage was entered into in good faith and not for immigration purposes. An experienced immigration attorney will be able to advise you as to what evidence is available to you and is most effective.

If you are married when first filing a joint petition, but subsequently obtain a final decree of divorce while the petition is pending, you must notify the Citizenship and Immigration Service of the changed circumstances and request that your joint petition be changed into a waiver petition.

If you are separated or going through a divorce at the time you file to remove the conditions of residency, you may still file a joint petition with your spouse if he/she is willing to do so. Your application will not be denied just because you are going through a divorce or are separated at the time, but the separation or impending divorce must be divulged in the application.

Similar to our recent case discussed above, the process becomes more difficult if you are separated or filing for divorce and your spouse refuses to participate in the joint petition. In this case the only option is to submit a good faith marriage waiver and notify the office that you are separated or that the divorce is pending. If you do this, an immigration officer handling your case will send a letter requesting a copy of the final divorce decree within 87 days. If you are able to present the decree in a timely fashion, the case will proceed to determine if the marriage was entered into in good faith. If you do not provide a divorce decree within the 87 days, your conditional residency is terminated and you will be placed in proceedings in immigration court. However, you will still be able to request a good faith marriage waiver in immigration court once the divorce is final.

With the right assistance you will be on your way to the path of permanent residency despite your divorce. The lawyers of Wilner & O'Reilly have the experience and knowledge to work with you to be sure that you are eligible for a good faith marriage waiver and what steps should be taken going forward. Should you need assistance with any problems regarding conditional residency or any immigration matters, please do not hesitate to contact us at 800-352-7034 or visit us on the web at www.wilneroreilly.com.

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