By Attorneys Robert L. Reeves and Lorena Larios-Shah
The U.S. Citizenship & Immigration Services (USCIS) grants conditional permanent resident status to spouses of U.S. citizens who have been married for less than two years on the date the application for adjustment of status is approved, or in consular process cases, the date the spouse is admitted to the U.S. with an immigrant visa. To remove the conditions, the couple is required to file a joint petition within 90 days preceding the second anniversary of the date the spouse became a conditional resident. If there are dependent children who acquired conditional resident status with their parent the children can simply be added to the petition. If the children adjusted their status or entered the U.S., after 90 days of the parent’s approval or arrival, then they must file their own petition to remove the conditions of their status.
The joint petition requires that the conditional immigrant establish that the marriage was legal where it took place, the marriage has not been terminated, the marriage was not entered into for the sole purpose of obtaining an immigration benefit and no fee, other than an attorney’s fee to assist in the filing, was paid. Furthermore, the joint petition must be supported by evidence of the validity of the marriage. If the USCIS determines that the marriage was entered in good faith it will approve the joint petition, remove the conditions and grant permanent resident status.
Unfortunately not all permanent residents with conditional status are able to remove their conditional status with a joint petition. For example, in cases where the conditional resident is no longer married to the U.S. citizen, the U.S. citizen spouse dies, or the U.S. citizen spouse subjected the conditional resident to some form of extreme cruelty. Fortunately, immigration law permits the filing of a waiver of this joint filing requirement.
The Conditional Resident Entered the Marriage in Good Faith but was U.S. Citizen Spouse Subsequently Died.
If the U.S. citizen spouse dies during the two year period, a joint petition is not required. However, the conditional resident must establish that the marriage was legal and was not entered into for the purpose of procuring an immigration benefit. That means that this waiver must also be supported with sufficient evidence showing that the marriage was entered in good faith.
The Conditional Resident Entered the Marriage in Good Faith but the Terminated Due to Divorce or Annulment.
This waiver requires that the marriage be legally terminated in divorce or annulment. Only then can the conditional resident apply for the waiver. This waiver also requires that the conditional resident provide sufficient documentary evidence that that he/she entered the marriage in good faith.
Often times, the couple files a joint petition, but before the application is adjudicated they file for divorce. In this situation, the USCIS will issue a Request for Evidence to the conditional resident to provide a divorce decree. The USCIS will give the conditional resident 87 days to respond. If the decree is presented within that time the officer will convert the petition to that of a good faith marriage waiver and the conditional resident will not need to file a new petition.
The Conditional Resident Entered the Marriage in Good Faith, but was Battered or Subjected to Extreme Cruelty by the U.S. Citizen Spouse.
A conditional resident may also file a waiver based on battery or extreme cruelty. The USCIS has defined this exception as including, but not limited to, “being the victim of any act or threatened act of violence, including any forceful detention which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation…shall be considered acts of violence.” 8 C.F.R. §§216.5(e)(3)(i), 1216.5(e)(3)(viii). The USCIS must also consider claims based upon extreme mental cruelty. 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.” A conditional resident can apply for this waiver even if he/she is still married but separated. A divorce is not required for this waiver. This waiver requires ample evidence to support the conditional resident’s claim.
The Termination of Status Would Result in Extreme Hardship.
Immigration law also provides that the Attorney General shall only consider extreme hardship to the conditional resident that occurred during the period of conditional residency. If hardship already existed prior to the period of conditional status the USCIS will not consider it. 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. An immigrant can file this waiver even he/she is still married but separated. Just like the extreme cruelty/battery waiver, a divorce is not required.
Due to the complexities of removing the conditional status of permanent residency, conditional residents should consult with experienced immigration attorneys.