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What to do with conditional green card status in troubled marriages


MARRIAGE for many persons is the culmination of one’s life. Getting married signifies the beginning of a new phase in life, both socially and economically. For those persons who lack permanent residency in the United States and have married a United States citizen, marriage also presents an opportunity to obtain permanent residency. However, although the opportunity to obtain permanent residency arises in such situations, one must be aware of and comply with procedures in existence to obtain such status. Due to concerns that persons were becoming married to United States citizens merely to obtain permanent residence status, a two-step procedure under the Immigration Marriage Fraud Amendments of 1986 (IMFA) was set up to ensure such status was given to those only in marriages that are bona-fide and not entered into simply for immigration purposes.
Under step one of the procedure, if a person is petitioned by his/her U.S. citizen spouse within 24 months after becoming married, that person is given only conditional permanent residence.  Such conditional permanent residence status lasts for two years from the date on which it is granted.
Step two of the procedure involves the removal of the conditional label to permanent residence status.  Removal of the conditional label is initiated by filing an I-751 Joint Petition to Remove Condition to Permanent Residence (“Joint Petition”).  The Joint Petition provides an opportunity for the United States Citizenship and Immigration Services (“USCIS”) to inquire as to the legitimacy of the marriage after conditional permanent residence is granted.  Accordingly, documentation evidencing that the marriage was entered into for bona-fide reasons should be submitted as part of the Joint Petition.  The Joint Petition must be filed with the USCIS service center in the 90 days immediately prior to the second anniversary of the granting of conditional permanent residence.
Typically, upon the filing of the Joint Petition, a one-year extension of the conditional permanent residence is granted.  The extension affords the USCIS time to schedule an interview with the person seeking permanent residence, and to make a determination as to whether unconditional permanent residence will be granted for a ten-year period.  In cases in which documentation submitted as part of the Joint Petition clearly show that the marriage is bona-fide and not merely for immigration purposes, INS may approve a Joint Petition without an interview.
The procedure described hereinabove applies in situations where the marriage has not been terminated.  Often, the Joint Petition cannot be filed or approved because the marriage, although bona-fide when entered into, has been terminated by divorce.  May aliens become threatened of falling out of status once their marriage is in trouble because the spouse often refuses to cooperate or has filed a divorce petition.  In such cases there is still hope and the prospect of obtaining unconditional permanent residence status still remains.  A waiver of the joint petition requirement may be sought in such cases.
Darrick Tan is an attorney with the Law Offices of Kenneth U. Reyes, P.C.  Mr. Tan  is a Board of Governor with the Philippine American Bar Association.  A graduate of Southwestern University School of Law and UCLA, Mr. Tan has been admitted to practice in California and Nevada.  LAW OFFICES OF KENNETH U. REYES, P.C. is located at 3699 Wilshire Boulevard, Suite 700, Los Angeles, California 90010.  Telephone (213) 388-1611 or e-mail at  HYPERLINK “mailto:tandarrick@gmail.com” tandarrick@gmail.com. â– 

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