By Attorneys Robert L. Reeves and Jeremiah Johnson
You met that special someone, married and immigrated to the United States. However, your immigrant status is conditional and you are now approaching the two-year deadline to remove that conditional status. But there is a problem; your spouse is not cooperating and your marriage may not be working out. Whether you are just separated or your divorce is final, you may still be able to remove the conditional status using one of three “hardship waivers.”
As a result of the Immigration Marriage Fraud Amendments Act of 1986 (IMFA), marriage to a U.S. citizen results in “conditional” immigrant status if the marriage is less than two years old at the time immigrant status is granted. Couples generally file a joint petition to remove the conditional status within 90 days of the second anniversary of obtaining resident status. The petition is supported with evidence of a bona fide marriage, such as joint ownership of property, commingling of finances, birth certificates of any children, and affidavits from friends and family.
But what if the immigrant cannot file the joint petition with their U.S. citizen spouse? Section 216(c)(4) of the Immigration and Nationality Act (INA) provides for a “hardship waiver” if a joint petition to remove the conditional residence cannot be filed. The three independent bases for a waiver are: 1) the immigrant will suffer “extreme hardship” if she were removed; 2) the marriage was entered into in good faith “but the qualifying marriage has been terminated”; and/or 3) the marriage was entered into good faith and the immigrant was subject to battery or “extreme cruelty.” The Board of Immigration Appeals (BIA) in Matter of Anderson held that these three “hardship waivers” are separate and independent and each ground should be asserted where applicable.
Although collectively the waivers are known as “hardship waivers,” only the first waiver requires the immigrant establish that she would suffer extreme hardship if she were removed from the United States. It is important to note that the United States Citizenship and Immigration Services (USCIS) will only consider the hardship to the immigrant that arose during the conditional status period. A waiver based on extreme hardship may be filed even if the couple is separated. Examples of hardship could involve medical conditions or financial difficulties.
An immigrant may also file for a waiver based on battery or “extreme cruelty.” “Extreme cruelty” encompasses physical violence and psychological and emotional abuse. Furthermore, federal regulations note that “battery or extreme cruelty” includes “acts that, in and of themselves, may not initially appear violent but are part of an overall pattern of violence.” If an immigrant believes she may have suffered extreme cruelty, it is important for her to seek not only help with her immigration status but also assistance with her personal safety and well-being.
Unlike the other two waivers, the “good faith marriage waiver” requires that the marriage be terminated before the immigrant files a waiver to remove her conditional status. The clear language of the INA and a policy memo issued by the USCIS on April 10, 2003 prohibit an immigrant to apply for a waiver based on good faith marriage waiver until the divorce or annulment is final. But what if the U.S. citizen spouse is not cooperating and the divorce is not yet final? The immigrant faces a dilemma: she must remove the condition of her resident status before it expires, but is unable to file a joint petition or file a waiver based on good faith. Can the immigrant still remove her conditional status? The short answer is yes.
There are two possible options for the conditional immigrant. The first is to timely apply for a waiver either based on “extreme hardship” or “extreme cruelty” if these grounds exist. The second option is for the immigrant to file an application to remove the conditional status once the divorce is final, even if the immigrant is placed in removal proceedings after the termination of her resident status.
The policy memo from the USCIS states that “[if] an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings.” In Matter of Stowers, the BIA agreed with the government’s position, noting that the Immigration Judge should continue the case until the USCIS makes a decision on the waiver. The BIA also noted in Matter of Mendes that the immigrant should be given a reasonable opportunity to file a hardship waiver where she appears prima facie eligible. A reasonable opportunity to file a waiver would include the opportunity to wait until the divorce is final. Although immigrants want to avoid having to appear before an Immigration Judge in removal proceedings, a knowledgeable and trusted immigration attorney can make sure your rights are protected.
Sometimes marriages do not work out but that is not a reason for you to lose your immigration status. If you are approaching the two-year deadline to remove the conditions of your resident status, you may want to seek an experienced and knowledgeable attorney regarding the removal of your conditional status if a joint petition is not possible.