Divorce and Immigration

by George Barron

Immigrants who receive permanent resident status based upon their marriage to a United States citizen actually receive conditional permanent resident status. Their permanent residents is condition upon their marriage to the United States citizen. In order to remove the conditions from the permanent resident status, in immigrant must apply to the USCIS to remove those condition. At that time, the immigrant and the citizen spouse must submit evidence that the marriage was entered into for illegitimate purposes and that the couple has been living together as husband and wife. All too frequently, difficulties in the marriage prevent this from going to according to plan. There are many reasons why the marriage may not work out even if both parties had good intention in the beginning. I frequently see cases where the citizen spouse is cruel, abusive, and unreasonable toward the alien spouse. The citizen spouse frequently uses the conditional permanent resident status as a way to get leverage in the relationship, threatening the alien spouse that if he or she leaves the marriage, he or she will have to leave the country as well.

There are some provisions of immigration law that allow an alien spouse to remove the conditions on his or her permanent residence when the marriage is having difficulty. The process of removing conditions from the alien permanent resident status is started with a joint petition that must be filed by both the alien and the citizen spouse.

A waiver of the joint filing requirement is available in limited circumstances. If the parties entered into the marriage in good faith and without the intent to evade immigration laws, but the marriage ended by annulment, divorce, or death of the citizen spouse, the alien spouse may receive such a waiver. In addition, if the marriage is entered into in good faith and not for the purpose of evading immigration laws but the alien spouse was subjected to extreme cruelty and for abuse, a waiver may also be obtained.

Generally speaking, the existence of the divorce proceedings is not sufficient to support a waiver of the joint filing requirements. The divorce must be finalized at the time of filing such a waiver.

Immigrates who find themselves in troubled marriages and who are in the United States on a conditional bases must be extremely careful. Failure to make application to remove the conditions at the proper time will result in the expiration of the alien’s permanent resident status. The alien my very well find himself or herself facing removal proceedings.

Aliens who marry United States citizens or permanent residents receive conditional permanent resident status if the marriage was less then two years old on the day they were granted permanent residence. In order to remove the conditions from that permanent resident status, the alien and the spouse must prove that they did not get married in order to evade immigration laws.

This is accomplished through a separate application to remove the conditions on the alien’s residence. It should be filed during ninety days before the second anniversary of the conditional residence. The second anniversary of your conditional residence is the expiration date on your green card. It is important that the ninety day window is carefully applied. If the alien waits too long, he or she loses his or her permanent resident status and maybe removed from the United States. If the alien applies too early, the application will be returned. Given the bureaucracy involved in filing and having the USCIS return petitions, this could cause a considerable delay.

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