By Attorneys Robert L. Reeves and Jeff L. Khurgel
A conditional green card is granted to spouses of U.S. citizens who have been married less than 2 years on the date of the approval which is usually the interview date. This conditional status can only be removed by a joint petition or by a waiver if the joint petition cannot be filed.
If the conditional resident is still married to the petitioning US citizen spouse, a joint petition should be filed by 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 sufficient evidence that demonstrates the marriage was entered into in good faith. 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 permanent resident status. Assuming the couple remains in a valid marriage, the immigrant spouse may be eligible to apply for Naturalization about nine months later.
The divorce rates in the U.S. is consistently over 50%, and just like marriages of U.S. citizens, not all immigrant marriages work out as intended. Fortunately, immigration law permits for a waiver where an immigrant cannot file a joint petition with their U.S. citizen spouse. Section 216(c)(4) of the Immigration and Nationality Act (INA) provides for a waiver in instances where 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 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) has held that these three waivers are separate and independent and each ground should be asserted where applicable.
Extreme Hardship Waiver
The extreme hardship waiver requires the immigrant to establish that he or she would suffer extreme hardship if removed from the United States. Common examples of hardship include medical conditions, financial difficulties, and the separation of family members. If hardship already existed prior to the period of conditional status, United States Citizenship and Immigration Services (USCIS) will not consider it. The USCIS will only consider the hardship to the immigrant that arose during the conditional status period. A couple does not need to be divorced in order for a spouse to file such a waiver, an extreme hardship waiver may be filed even if the couple is separated.
Extreme Cruelty Waiver
An immigrant may also file for a waiver based on battery or extreme cruelty. Extreme cruelty includes 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.
Good Faith Marriage Waiver
The good faith marriage waiver is different from the other two waivers, because it requires that the marriage be terminated as a prerequisite. Immigration law and USCIS policy both agree that such a waiver cannot be considered by USCIS until the divorce or annulment is final. However, in many states, finalizing a divorce takes several months. Many conditional residents who married in good faith, have found themselves in the midst of a divorce without a final decree at the time the petition to remove the condition was due. Until recently this meant that they were required to file two petitions. The first was a joint petition, and the second a good faith marriage waiver when the divorce was finalized.
The USCIS recently addressed this issue in a policy memorandum. The memo relayed guidance to USCIS adjudicators involving parties that are divorcing. Adjudicators are to request additional evidence to resolve issues and for the parties to provide a final divorce decree. The immigrant will be provided an 87-day response time. Once the divorce is received, the basis for removal of conditions will be converted to that of a good faith marriage waiver and the immigrant will not need to file a new petition.
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.