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Petitions to remove conditional residency

By Atty. Allison Aquino

The Immigration Marriage Fraud Act (IMFA) was enacted in 1986 in an effort to combat marriage fraud. IMFA added section 216 to the Immigration and Nationality Act, which imposes an initial 2-year period of conditional residency to any person that acquires permanent residence status based on a marriage that is less than 2 years old.

To remove the conditions from permanent residency, the husband and wife must file a joint petition with the CIS evidencing their continued marriage within the ninety days before the conditional residency expires. Failure to file the joint petition will result in the automatic revocation of the individual’s permanent resident status and initiation of removal proceedings.

Circumstances arise, however, when individuals continue to be happily married but fail to file the joint petition. Individuals may still have the opportunity to pursue the petition, but must provide the CIS with an explanation setting forth valid and legitimate good cause as to the failure to timely file. Applicants who fail to furnish the explanation will automatically be denied and removal proceedings instituted. Careful preparation must therefore be taken to ensure that all requirements are met.

Problems arise when there has been a breakdown in the marriage that causes a husband and wife to no longer be residing with one another. In these situations, the spouses may still file the joint petition, but must be able to provide clear and convincing evidence that the marriage was indeed legitimate and bona fide to be granted.

If the non-immigrant spouse is not willing to participate in the joint petition, then an individual must file a waiver of the joint petition. If the waiver is not filed, then the individual’s residency is automatically terminated and removal proceedings will be instituted. There are several bases for requesting a waiver. First, a waiver is available if the US citizen or permanent resident spouse has passed away.

Another basis is that the non-citizen entered into the marriage in good faith, but that he/she has been “battered or subjected to extreme cruelty” by the spouse. This includes not only physical abuse, but also psychological and emotional abuse. The application must be substantiated by documents evidencing the abuse, such as medical reports, police reports, psychological reports, witness affidavits, etc.

A third basis for waiving the joint petition requirement is that the non-citizen would suffer extreme hardship if the waiver is not granted. Again, documentation evidencing the extreme hardship to be experienced must be included in the application.

The final basis for waiving the joint petition involves the most common situation. It requires the conditional resident to prove that he/she “entered into the marriage in good faith, but the marriage was terminated through divorce/annulment.” The standard for showing a good faith marriage is exceptionally high, and must therefore be evidenced through extensive documentation and an interview.

Additionally, the timing of a divorce is extremely important when requesting a waiver based on the good faith nature of the marriage. Procedures vary depending on whether the divorce has been filed, remains pending or has already been finalized. As the divorce is closely related to the waiver petition, it is important to coordinate processing of the divorce with the waiver petition. Failure to timely finalize a divorce may result in the individual’s waiver application being denied and initiation of removal proceedings. While the waiver petition may be renewed in removal proceedings, the situation will certainly create additional anxiety and likely financial detriment to adequately defend oneself in removal proceedings.

Due to the significant concern of the CIS to combat marriage fraud, late filed joint petitions, multiple petitions and waiver applications to remove the conditions from residency are heavily scrutinized. Applications must be fully documented evidencing the basis for the waiver petition or removal proceedings may result. Consequently, individuals must ensure that they are properly represented for these applications.

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For further information, please schedule an appointment with Atty. Allison Aquino or Atty. Richard M. Loew of Aquino & Loew, A Professional Law Corporation, 625 Fair Oaks Avenue, Suite 101, South Pasadena, CA, 91030; (626) 799-3089; info@aquinolaw.net. Please also visit Aquino & Loew at www.aquinolaw.net. Aquino & Loew also handles family law and criminal law matters. Free initial office consultation is available upon appointment.

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