By Attorneys Devin M. Connolly & Nancy E. Miller
A non-citizen who is granted lawful resident status based on marriage will receive conditional permanent residence if the marriage on which the green card is based is less than two years old at the time the application is approved. Conditional resident status is nearly identical to permanent resident status. The major distinction is that the conditional resident’s status is only granted for two years. It automatically expires on the second anniversary of the application’s approval.
In order to prevent the automatic termination of status, the conditional resident and the petitioning spouse are required to file a joint petition in the 90-day period preceding the second anniversary of the date the non-citizen became a conditional resident. A joint petition requires the conditional resident and spouse to prove that their marriage is bonafide or real. This is not the same as legal. A marriage may be legal but not bona fide. Bonafide refers to a marriage between two people who had the intent to establish a life together when they entered the marriage. The opposite is a sham marriage, which is entered into solely for the purpose of obtaining an immigration benefit. The former is valid. The latter is not. The U.S. Citizenship and Immigration Service (USCIS) will obviously only remove the conditions on a person’s residency when that person has sufficiently demonstrated they are in a bonafide marriage. The conditional resident and spouse must therefore provide sufficient documentation to support their claim that their marriage was bonafide. The joint petition must also prove that the parties are still living together as a married couple.
It is a sad reality that marriages sometimes end before they reach their second anniversary. In some cases, the marriages end due to the death of a spouse. In other instances, they end due to irreconcilable differences between the parties. In both cases, joint petitions are no longer possible. Thankfully, the USCIS allows the conditional resident to request a waiver of the joint filing requirement.
The Immigration and Nationality Act permits requests for waivers to be granted in the following situations: (1) the marriage was entered into in good faith but the qualifying marriage has been terminated; (2) the non-citizen will suffer extreme hardship if removed to their native country; and (3) the marriage was entered into good faith but the non-citizen was subject to battery or extreme cruelty during the marriage.
A good faith waiver requires the conditional resident to demonstrate that the marriage was not entered into solely for immigration benefits. Rather, they must prove that they entered into the marriage with the intention of creating a life together with their ex-spouse. An alien is not eligible for the waiver until the marriage is legally terminated. Separation is not enough. The divorce must be final. While waivers of the joint petition do not have the same two year filing requirement, failure to file will open the non-citizen to the possibility of being placed in removal proceedings. However, being placed into proceedings does not preclude the possibility of seeking the good faith waiver. The process is more complicated but, certainly, do-able.
An extreme hardship waiver requires the conditional resident to establish that they would suffer extreme hardship if deported from the U.S. The USCIS will only consider hardship to the conditional resident that arose during the conditional status period. USCIS assumes that returning home will have difficulties. Therefore, the conditional resident must show that the hardship would be beyond the norm. Examples of hardship include separation of family members, inability to treat medical conditions in the home country, lack of employment opportunities, political unrest, repercussions of natural disasters and more. Identifying the hardship is Step 1. Showing why the effect is extreme is the essential Step 2.
Finally, a conditional resident may also request a waiver of the joint filing requirement based on the extreme cruelty they were subjected to by their spouse. Extreme cruelty may, but does have to, refer to physical violence. Psychological and emotional abuse are also forms of extreme cruelty. Emotional abuse can be very subtle. That makes it harder to prove. Often, expert evaluations are helpful in this regard.
We briefly mentioned the possibility of the marriage ending due to the death of the U.S. spouse. The full extent of relief available to widows and widowers is beyond the scope of this article. Suffice it today to say that there is relief for non-citizens in this situation as well.
Removing the conditions on a person’s residency is a difficult process. It becomes ever more challenging when a request for a waiver is required. Conditional residents should therefore consult knowledgeable and experienced immigration attorneys.