Conditional Resident- What if the Marriage Fails?

Attorneys Robert L. Reeves and Flomy J. Diza

Spouses and children of U.S. citizens (USC) obtain conditional permanent residence if they were married less than two years at the time their case is approved. The conditional basis of the status can only be removed by a joint petition or by a waiver if the joint petition cannot be filed.

Joint filing

If the conditional resident is still married to the petitioning US citizen spouse, the joint petition should be filed by both the husband and wife. They jointly file a petition to Remove Conditions on Residence within the 90-day period preceding the second anniversary of the date s/he became a conditional resident. The petition must be accompanied by evidence that demonstrates they entered the marriage in good faith. Examples of such evidence include proof of joint ownership of property, commingling of finances (e.g. tax forms, bank statements, insurance policies), birth certificates of children, photos of the couple taken during the marriage, declarations of persons having knowledge of their marriage and other documentation establishing a bona fide marital relationship. If the USCIS determines that the qualifying marriage was entered into in good faith, it will approve the joint petition, remove the conditional status, and grant the non-citizen permanent resident status.

If the marriage fails

The waiver petition to remove conditional status is filed by conditional residents who are unable to file a joint petition because either the USC spouse died or the marriage was terminated due to divorce or annulment. The petitioner must prove that the termination of status and removal would result in extreme hardship, the marriage was entered into in good faith and terminated, or that the marriage was entered in good faith but the conditional resident was subjected to abuse or extreme cruelty by the USC spouse.

If the petitioning spouse died during the first two years of the marriage, the conditional resident should submit the death certificate and proof that the marriage was bona fide.

If the USC spouse and conditional resident are separated or have initiated divorce proceedings at the time the petition is due to be filed, the USC spouse and conditional resident may still file a joint petition if the USC spouse is willing to sign the petition. If the USC spouse is not willing to sign a joint petition, the conditional resident is not eligible to file a petition requesting a waiver of the joint filing requirement based on divorce until the divorce is final, unless abuse is the basis for such a filing. However, conditional residents should file a good faith marriage waiver with a hardship claim even if the parties are not divorced prior to the expiration of conditional status. This will preserve the right to reassert the good faith marriage waiver after the divorce. Claims must be properly raised before the USCIS before they can be put before the immigration judge.

The advantage of filing under the extreme hardship provision is that the conditional resident does not need to demonstrate the marriage was terminated. The statute provides only that the applicant must demonstrate “extreme hardship would result if such alien is removed.” The test for extreme hardship is difficult, since the applicant must demonstrate hardship beyond the normal problems associated with removal.

A conditional resident may also have the conditional status removed if s/he can show that s/he married the petitioning spouse in good faith, but that the spouse either physically abused or subjected to extreme mental cruelty the conditional resident (or his/her child). Regulations indicate that abuse or extreme cruelty may include: forced detention resulting in physical or mental injury, psychological or sexual abuse or exploitation, rape, incest or forced prostitution. While the regulations specifically list only the most egregious acts of violence that may be perpetrated by a spouse, USCIS will consider lesser acts of abuse and cruelty.

Due to the complexities of removing the conditional status of permanent residency, especially where requests for waivers are required, conditional residents should consult knowledgeable and experienced immigration attorneys.