(818) 552-4503

Removal of Conditional Residence when the marriage is shaky choice immigration corner

Question: I married a U.S.citizen in 2009 and I obtained my conditional permanent residence last year. My conditional residence is due to expire in January, 2012 and now my wife does not want to live with me anymore and will not help me obtain my removal of conditional residence. I am worried that the USCIS will deny my permanent residence and deport me. What can I do?

Answer: Any immigrant who marries a U.S. citizen, and is otherwise eligible, may apply to adjust is or her status to lawful permanent resident (“green card”).  If married for less than two years at the time the application is approved, the foreign national will receive what is known as “conditional permanent residency.”  This type of permanent residency is not really permanent but rather expires two years after the initial grant. In other words, the USCIS gives applicants a temporary greencard to test the validity of the marriage and to make sure that it is not sham.

A request to remove the conditions must be made with Citizenship and Immigration Services within ninety days prior to expiration of the residence.  This request is made by filing form I-751with the USCIS and paying the necessary fees. If the couple is still married, the petition is filed jointly and is a simple application.

Problems may arise, however, when the couple separates or divorces during the period of conditional residency or when one’s spouse refuses to participate in the joint petition despite still being married.
If one is divorced at the time when the petition to remove conditional residency is due, one may not submit a joint petition.  Rather, an individual petition is to be filed and a good faith marriage waiver requested.

As long as the petitioner proves that the marriage was valid when entered into but subsequently dissolved, there is still a good chance of winning the good faith waiver and having permanent residence granted. So just because you are divorced, don’t believe that you will automatically be denied.

I have had many cases approved through this good faith waiver provision without any help whatsoever from the U.S. citizen spouse. No doubt, the USCIS will schedule a interview to ask the applicant questions to test the validity of the marriage but if the marriage was a valid one, the fact the couple is divorced now is not a grounds to deny the petition for removal of conditional residence.

Sometimes the USCIS interviews are long and a bit gruelling but this is only  done to make sure that the government is satisfied that the petitioner entered into a valid marriage.

If the couple is still married but the petitioner is not cooperating, this can cause some dilemmas.  In this case, the applicant cannot file a self petition unless he or she can show extreme hardship. This is a very high burden and most of these applications get denied.

Therefore, when the U.S. citizen does not wish to assist in removing conditional residence the options boil down to getting divorced and then filing a self petition or filing a self petition as an abused spouse.

Upon receipt of the final judgment of dissolution, one may then file an petition to remove the conditions on residency whether it is filed in a timely manner or not.  This is a very viable option where the U.S. citizen is separated from the applicant and does not wish to sign a joint petition.

Alternatively, the permanent resident can file as an abused spouse if he or she has evidence that the U.S. citizen mentally or physically abused him or her. Abuse can take the form of verbal or psychological abuse, threats, embarrassment, or torment, as well as assaults.  The USCIS takes these applications very seriously and gives each applicant a chance to show the abuse.

If the USCIS is satisfied that the resident was abused by the U.S. citizen spouse, the removal of conditional residence can be approved even without the cooperation of the petitioning spouse.  The  couple need not be divorced or even separated for this petition to be filed.
If the conditions upon residence are removed, one receives a ten year lawful permanent  card that is valid and renewable indefinitely

((Paul Choi is an immigration attorney practicing in Encino, California. As a public service, he will answer all questions regarding immigration and naturalization for free either by mail, email at pchoi@pchoilaw.com, on the phone, or in person or you may contact his administrator, Philip Abramowitz at 818 714-2226, or pabramowitz@pchoilaw.com.  The following is one such question and the answer by Mr. Choi. Atty Paul Choi will answer all questions regarding immigration, naturalization and deportation defense for FREE. Contact him at pchoi@pchoilaw.com or at 818 714-2226. He is located at 16000 Ventura Blvd, Ste. 1201, Encino, California 91436.)

About the Author