MARITAL TROUBLE CAN CAUSE PROBLEMS FOR CONDITIONAL PERMANENT RESIDENTS

By Attorneys Robert L. Reeves and Anthony J. Favero

Many believe that marrying a United States citizen is the most straightforward means of obtaining legal permanent residence in the United States.  But, marital troubles can cause problems for conditional permanent residents. This article will address some of the problems conditional permanent residents may face when their marriages fall apart.

When an immigrant and citizen marry, the immigrant becomes an “immediate relative” of the citizen and, therefore, exempt from the numerical limitations and quotas that cause long delays for many other types of immigrant visas.  Because of this obvious benefit of gaining “immediate relative” status, Congress has enacted laws aimed at ensuring marriages between United States citizens and immigrants are for the purpose of creating a martial relationship and not simply to secure immigration benefits.

One of these laws, the Immigrant Marriage Fraud Amendments of 1986, created a two-year conditional permanent resident status for immigrant spouses who were married less than two years before applying for permanent residency.  Under this law, if the Government discovers during the two-year conditional period that a marriage between an immigrant and a citizen was entered into fraudulently or only with an intent to secure immigration benefits, it will terminate the immigrant’s permanent resident status.  This leaves the immigrant without status and facing deportation proceedings.

However, most couples arrive at the end of the two-year conditional residence period without any Government intervention.  Thus, during the ninety days before the expiration of the two-year period, the immigrant must file a petition to remove the conditional status and obtain unconditional permanent residency.  What kind of petition is filed depends upon the immigrant’s marital situation at the time of filing.  If the immigrant and the citizen remain happily married, they will file a joint application to remove the condition from the immigrant’s status.  Subsequently, if the Government is convinced that their marriage is legitimate, it will grant the joint petition and remove the condition from the immigrant’s status.  This makes the immigrant a permanent resident.

On the other hand, if a couple is no longer together near the end of the two-year conditional period, the immigrant may still be able to gain permanent resident status without filing a joint petition.  In certain cases, the immigrant can obtain a waiver of the joint filing requirement if he or she files a petition to remove the conditional status based on one of the following: (1) the citizen spouse passes away, (2) a good faith marriage that was terminated through divorce or annulment, (3) the immigrant was subjected to battery or extreme cruelty at the hands of his or her spouse, or (4) termination of status and removal from the United States would result in extreme hardship to the immigrant.   If one of these waivers is granted, the immigrant will become a lawful permanent resident even without a joint petition.

Yet, many immigrants find themselves outside the aforementioned situations.  For example, what if the marriage is in trouble and the couple is separated, but they have not divorced?  In that case, the immigrant must first realize his or her immigration status is in jeopardy, and any reliance upon his or her spouse’s willingness to participate in the joint petition may be ill-advised.  The Board of Immigration Appeals has held that a withdrawal of support from a joint petition should be treated as a failure to file a petition at all.  Matter of Mendes, 20 I&N Dec. 233, 837 (BIA 1994).  Consequently, if an immigrant’s spouse decides he or she no longer wants to participate in the joint petition, the Government will treat the situation as if no petition was ever filed.  This leaves the immigrant with no legal status and subject to removal from the United States.

Also, the immigrant must know his or her options are limited.  Without the ability to qualify for a waiver and unable to rely upon his or her citizen spouse, the immigrant faces a deadline after which he or she will lose both legal status and the ability to legally work or travel.  Therefore, the immigrant must act timely in order to maintain his or her legal status and work authorization.  One way of maintaining legal status may require filing for an extreme hardship waiver.  This waiver requires an immigrant prove he or she would suffer extreme hardship upon being removed from the country and involves a complex weighing of numerous hardship factors defined by the Board of Immigration Appeals.  However, filing the waiver will extend the immigrant’s legal status and work authorization for a limited time.  While the waiver is pending, the immigrant should also file for divorce as soon as possible within the jurisdiction where he or she resides.  Once the divorce is granted, a good faith marriage waiver application would be well advised.  

As seen above, moving from conditional residency to lawful permanent residency can prove quite risky and complex.  If you have been granted conditional permanent residence and believe your marriage is in trouble, it is in your best interest to consult an experienced immigration attorney.  A misstep in this area could result in losing your legal status and falling into deportation proceedings.  However, an attorney can help you determine the best approach for maintaining legal status despite your relationship troubles.