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Renewing conditional residence can be tricky

By Atty. Paul Choi

Paul Choi is an immigration attorney and professor of law located at 16000 Ventura Blvd. Ste 1201, Encino, CA. 91436. Atty Choi will answer all questions regarding immigration and naturalization for free. Address questions to pchoi@pchoilaw.com or telephone 818 714-2226. Atty Choi is pleased to announce that his administrator is Philip Abramowitz who has 30 years of experience in immigration law.

Question: I married a U.S. citizen in 2008 and I obtained my temporary green card in 2009. It is only a conditional residence and it will expire in July, 2011. I am worried about renewing my green card because my husband has moved out and he is living closer to his work. We are still on good terms but we do not live together because he wants to be closer to his children from a prior marriage and I can’t leave my work to be with him. Now that my green card will expire, I am worried that the USCIS will deny my renewal since I am not living with my husband. I thought about getting a divorce or filing a self petition based upon hardship. What should I do?

Answer: When a spouse immigrates through a marriage that has existed less than two years at the time of admission/adjustment of status, he or she receives conditional permanent resident (CPR) status instead of permanent resident status. The conditional resident requirements also apply to stepchildren who immigrate through a marriage that has existed for less than two years. A conditional resident must file a petition using Form I-751 to convert his or her status to permanent residence before the temporary residence expires.

Joint Petitions:

If the noncitizen spouse remains married to the U.S. citizen petitioner, they may file a joint I-751 petition and must do so in the ninety day period of time before the expiration of the conditional residence. The petition should include evidence of continued cohabitation, co-mingling of assets and liabilities, and other documentation of the relationship. The USCIS usually does not interview the couple. Failure to file the petition before the expiration of the conditional residence or failure to attend the interview results in loss of status and removal (deportation) proceedings.

Waiver of the Joint Filing Requirement

In some cases, it is not possible for the conditional resident to file a joint petition with his or her spouse. For example, the petitioning spouse may have died, the couple may have divorced, or the petitioner may be abusive. In these situations, the conditional resident may file an I-751 on her own along with a request to waive the joint petition requirement. The conditional resident still must satisfy USCIS that the marriage was genuine, but the participation of the petitioning spouse is not necessary. USCIS almost always conducts interviews where the conditional resident seeks a waiver based on divorce or abuse, and in my experience these interviews are long, tedious and decisions are often not rendered immediately.

The law states that the USCIS may waive the joint petition requirement in cases where the conditional resident establishes that removal would result in extreme hardship. The hardship must have arisen after admission as a permanent resident, so poor conditions in the conditional resident’s home country usually are not enough unless those conditions occurred after immigration. Further, in my experience the USCIS rarely grants the hardship waiver as the burden to prove hardship is a heavy one.

In your case, where you are still validly married but not living together for a valid reason, there is no reason not to file a joint petition as long as your husband agrees to sign. If you can establish that your marriage is bona fide and you are not separated due to marital issues or legal separation, you have a good chance of success. There is a likelihood that you will not be interviewed and even if an interview is scheduled to test the validity of the marriage if your husband attends the interview with you, and proves the marriage is still valid, there is no reason to deny your permanent residence.

There is no need to panic as there are options available to you. If in doubt, you should speak with an experienced immigration attorney for proper legal advice.

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Paul Choi will answer all questions regarding immigration for FREE. Contact him at pchoi @pchoilaw.com or at 818 714-2226. As always, consultations in office are still FREE.

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