By Laura Jacobson
Marriage to a U.S. citizen is one of the most well-known ways of obtaining legal immigration status in the United States. U.S. citizens can petition for their immigrant spouses to come to the United States as Lawful Permanent Residents (LPRs), with what is commonly known as the green card. However, the situation gets a little more complicated when the U.S. citizen and his or her immigrant spouse have been married for less than two years. When this is the case, the immigrant spouse receives only Conditional Permanent Residence at first. The immigrant spouse’s green card is valid only for two years, at which point he or she must file the I-751 petition to have the conditions removed and receive complete Lawful Permanent Residence. As a general rule, the I-751 must be filed by both spouses jointly. At the interview, the USCIS officer will speak with both spouses to confirm again that the marriage is bona fide; that is, that it was not entered into solely for the purpose of gaining immigration status. The purpose of Conditional Permanent Residence is exactly that – to ensure that individuals cannot abuse the system by marrying and quickly obtaining their legal status. The Conditional Permanent Residence is a check on the process, where newlyweds are checked up on again two years later to make sure the marriage was in fact real.
But what happens when a marriage has deteriorated over the past two years, such that the spouses are now separated or divorced? Can the immigrant spouse still get the conditions removed from his or her green card and continue to live in the United States permanently? A few exceptions to the joint filing requirement exist for immigrants in this situation, who were legitimately married at the time of receiving Conditional Permanent Residence, but whose marriage has ended or broken down for some reason.
If a marriage has been officially terminated, either with a final divorce decree or other document terminating or annulling the marriage, the immigrant spouse can file the I-751 alone. He or she will have to provide evidence that the marriage was terminated, as well as evidence of the relationship before it ended. However, if the couple is separated, but not yet divorced, the immigrant does not qualify to remove the conditions of the green card in this way. In this case, the immigration officer will give the immigrant 87 days to present to USCIS the final divorce decree. If the divorce is not finalized in time to meet this deadline, the immigrant will most likely be put into removal proceedings and will have to finish the process in Immigration Court when he or she receives the final decree or risk being deported.
Another exception to the joint filing requirement is for an immigrant spouse who suffered physical abuse or extreme cruelty from his or her U.S. citizen spouse. In this case, the immigrant spouse can file the petition alone even if he or she is not yet divorced from the U.S. citizen. A petition on this basis can be filed at any time within the two years of conditional residence – the spouse doesn’t have to wait until 90 days before the Conditional Permanent Residence expires, as is the case generally. He or she will have to show evidence of the abuse or cruelty, which may include police reports, court records, orders of protection, and medical records, among other things. This exception can also be used if the immigrant spouse was not abused by the U.S. citizen, but his or her Conditional Permanent Resident child was.
If the immigrant cannot file the I-751 jointly with his or her U.S. citizen spouse and does not meet any of the above exceptions, the only other way to get the conditions removed is if the loss of permanent resident status and deportation would result in extreme hardship. This is the only situation in which evidence of the relationship is not required. However, “extreme hardship” is a very high standard to meet, and the immigrant must show that his or her removal would create significantly more hardship than it would for other immigrants.
Filing an I-751 petition when the marriage has broken down can be a difficult and complicated process. Immigration officials take marriage fraud very seriously, and if a Conditional Permanent Resident is already legally separated or divorced from his or her U.S. citizen spouse, it may suggest to the officer that the immigrant spouse married the U.S. citizen for the sole reason of getting legal status. If the officer finds immigration fraud, the immigrant spouse may be deported and ineligible for an immigration visa in the future, even if it is based on a new relationship. It is best to talk with an immigration lawyer if you find yourself in this position, who can discuss with you the most appropriate process to take and help you document a strong case.
Marriage to a U.S. citizen is one of the most well-known ways of obtaining legal immigration status in the United States. U.S. citizens can petition for their immigrant spouses to come to the United States as Lawful Permanent Residents (LPRs), with what is commonly known as the green card. However, the situation gets a little more complicated when the U.S. citizen and his or her immigrant spouse have been married for less than two years. When this is the case, the immigrant spouse receives only Conditional Permanent Residence at first. The immigrant spouse’s green card is valid only for two years, at which point he or she must file the I-751 petition to have the conditions removed and receive complete Lawful Permanent Residence. As a general rule, the I-751 must be filed by both spouses jointly. At the interview, the USCIS officer will speak with both spouses to confirm again that the marriage is bona fide; that is, that it was not entered into solely for the purpose of gaining immigration status. The purpose of Conditional Permanent Residence is exactly that – to ensure that individuals cannot abuse the system by marrying and quickly obtaining their legal status. The Conditional Permanent Residence is a check on the process, where newlyweds are checked up on again two years later to make sure the marriage was in fact real.
But what happens when a marriage has deteriorated over the past two years, such that the spouses are now separated or divorced? Can the immigrant spouse still get the conditions removed from his or her green card and continue to live in the United States permanently? A few exceptions to the joint filing requirement exist for immigrants in this situation, who were legitimately married at the time of receiving Conditional Permanent Residence, but whose marriage has ended or broken down for some reason.
If a marriage has been officially terminated, either with a final divorce decree or other document terminating or annulling the marriage, the immigrant spouse can file the I-751 alone. He or she will have to provide evidence that the marriage was terminated, as well as evidence of the relationship before it ended. However, if the couple is separated, but not yet divorced, the immigrant does not qualify to remove the conditions of the green card in this way. In this case, the immigration officer will give the immigrant 87 days to present to USCIS the final divorce decree. If the divorce is not finalized in time to meet this deadline, the immigrant will most likely be put into removal proceedings and will have to finish the process in Immigration Court when he or she receives the final decree or risk being deported.
Another exception to the joint filing requirement is for an immigrant spouse who suffered physical abuse or extreme cruelty from his or her U.S. citizen spouse. In this case, the immigrant spouse can file the petition alone even if he or she is not yet divorced from the U.S. citizen. A petition on this basis can be filed at any time within the two years of conditional residence – the spouse doesn’t have to wait until 90 days before the Conditional Permanent Residence expires, as is the case generally. He or she will have to show evidence of the abuse or cruelty, which may include police reports, court records, orders of protection, and medical records, among other things. This exception can also be used if the immigrant spouse was not abused by the U.S. citizen, but his or her Conditional Permanent Resident child was.
If the immigrant cannot file the I-751 jointly with his or her U.S. citizen spouse and does not meet any of the above exceptions, the only other way to get the conditions removed is if the loss of permanent resident status and deportation would result in extreme hardship. This is the only situation in which evidence of the relationship is not required. However, “extreme hardship” is a very high standard to meet, and the immigrant must show that his or her removal would create significantly more hardship than it would for other immigrants.
Filing an I-751 petition when the marriage has broken down can be a difficult and complicated process. Immigration officials take marriage fraud very seriously, and if a Conditional Permanent Resident is already legally separated or divorced from his or her U.S. citizen spouse, it may suggest to the officer that the immigrant spouse married the U.S. citizen for the sole reason of getting legal status. If the officer finds immigration fraud, the immigrant spouse may be deported and ineligible for an immigration visa in the future, even if it is based on a new relationship. It is best to talk with an immigration lawyer if you find yourself in this position, who can discuss with you the most appropriate process to take and help you document a strong case.
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