By: Attorney Devin M. Connolly
A non-citizen who is granted permanent resident status (green card) based on their marriage will only be granted conditional permanent resident status if they have been married less than two years at the time their application is approved. Conditional resident status is nearly identical to permanent resident status. However, a major distinction is that the conditional resident’s status is only granted for two years. It expires on the second anniversary of having been granted permanent resident status.
In order to prevent the automatic termination of their status, the conditional resident and their 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 their spouse to prove that their marriage is “bonafide.” The term “bonafide” refers to a marriage between two people who had the intent to establish a life together. This can be contrasted from a “sham” marriage, where the only purpose of the marriage is for one of the parties to obtain an immigration benefit. 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 their spouse should therefore attach sufficient documentation proving the validity and bonafides of the marriage.
Despite the requirement for a conditional resident to file a joint petition with their spouse, it is sad reality that marriages are sometimes terminated before they reach their second anniversary. In these instances it is not possible to file a joint petition. There may be other reasons as well why a joint petition is not possible, such as because the conditional resident’s spouse has passed away or because they refuse to sign a joint petition. The USCIS therefore 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. The USCIS will deny the waiver request unless the conditional resident is able to submit sufficient evidence of the bonafides of the marriage. Also, a good faith marriage waiver can only be granted after the marriage is terminated. This sometimes causes problems for the conditional resident because they may be in the middle of a divorce when it is time to file a petition. However, an experienced immigration attorney will be sure to file the request for a waiver prior to the conditional resident’s status being terminated while also making sure that the request is accepted.
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. There are many examples of hardship, including the separation of family members, inability to treat their medical conditions outside the U.S., or lack of employment opportunities in their native country.
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 often includes physical violence at the hands of their spouse, but it does not have necessarily have to include physical violence. Extreme cruelty also includes psychological and emotional abuse. Though extreme cruelty based on psychological and emotional abuse is often difficult to establish, it may still be done through well-drafted declarations and detailed psychological evaluation. If a non-citizen believes they have suffered extreme cruelty, it is important for them to seek assistance for their personal safety as well as help with their immigration status.
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 a knowledgeable and experienced immigration attorney.
