By Attorneys Robert L. Reeves and Ben Loveman
If you or a loved one obtained permanent residency in the United States through marriage to a U.S. citizen, you may need to file a petition to finalize the process of becoming a “full’ permanent resident by removing the conditions on the resident status. This is because the Immigration and Nationality Act dictates that any person who obtain residency through a marriage which was less than two years old at the time residency was granted is only granted conditional resident status. The same is true for children of conditional residents who obtained their residency through a petition by a step-parent.
There are two ways in which the conditions on residency may be removed. First, if the couple remains married, a joint-petition must be filed with United States Citizenship and Immigration Services (USCIS) within 90 days of the two-year anniversary of the date they became conditional residents. The joint-petition is a request that USCIS remove the conditions on the residency and must be accompanied by significant evidence that the marriage was not entered into solely for immigration purposes. The failure to file this required petition will result in the automatic termination of the conditional residency and leave a person with no legal status in the United States. However, if this deadline is missed it may still be possible to ask USCIS to accept a late filed petition if ample justification is provided.
A more difficult and complicated situation arises if the couple are divorced or separated at the time the conditional residency expires. However, it is still possible to remove the conditions on residency under these circumstances by filing a petition requesting a waiver of the joint-petition filing requirement. The proper filing of a request for a waiver of the joint-petition requirement will result in the extension of the conditional permanent resident status for up to one year or until the waiver request is adjudicated.
A waiver request is appropriate and may be approved in the following situations: (1) the marriage was bona fide (real) but terminated through divorce, annulment, or death (the “bona fide marriage”) waiver”; (2) the conditional resident was subjected to battery or extreme cruelty at the hands of his or her spouse (the “abused spouse waiver”) or (3) termination of status and removal from the United States would result in extreme hardship to the conditional resident (the “hardship waiver”). If sufficient evidence is presented to establish eligibility for one of these waivers then the conditions can be removed from the residency without a joint-petition.
An extremely common and difficult situation which conditional residents face is where they are separated from their spouse but not yet divorced. Under these circumstances they will not be eligible for the bona fide marriage waiver because this waiver requires that the marriage be terminated through divorce, annulment or death. They may be eligible for the hardship waiver but establishing eligibility for this waiver requires substantial evidence of hardship. Finally, unless there was extreme cruelty or physical abuse during the marriage the conditional resident will not be eligible for the waiver for abused spouses.
Under these difficult circumstances it is crucial that the conditional resident act quickly but also plan carefully. The best strategy to apply for removal of conditions on conditional resident status will depend on the unique circumstances of each person’s case. However, as illustrated in the discussion above, the process can be complex. Further, if handled improperly the process may result in the conditional resident being placed in deportation proceedings and losing their permanent resident status. It is essential that anyone seeking to remove the conditions on their residency consult with an experienced immigration attorney to determine the best strategy for success in their case.