By: Robert L. Reeves and Steven J. Malm

Marriage to a United States citizen is one of the most common ways to obtain a green card.  When the couple has been married less than two years from the time conditional residency status is granted, the immigrant is given what is called conditional green card. Conditional means that their status is good for two years.  Within 90 days of the two year anniversary of the issuance of the green card, the immigrant and U.S. citizen spouse must file a joint waiver for the removal of the condition. Upon approval of the joint petition, the condition is removed and the immigrant is granted full status as a lawful permanent resident.  Failure to timely file the joint petition can result in the termination of lawful permanent resident status.  In other words, the immigrant loses his/her green card. 

However, unfortunately, not all marriages last for that two year period.  If the marriage has been terminated before the removal of conditions, the immigrant must seek a waiver of the joint petition in order to remove the conditions. The waiver may be applied for under the following circumstances:

–    the US citizen spouse is deceased;
–    the marriage was entered into in good faith, but terminated through divorce or annulment;
–    during the marriage the immigrant was battered or was the subject of extreme cruelty by the US citizen spouse;  or,
–    the termination of the lawful status and removal from the United States would result in an extreme hardship to the immigrant.

In adjudicating marriage-related petitions, including joint petitions or waivers of removal of conditions, the United States Citizenship and Immigration Services (USCIS) is primarily concerned with whether the marriage was entered into because the couple wanted to create a life together as opposed to a marriage for convenience to obtain a green card, in other words, a sham marriage.  The USCIS will consider many of the following factors in evaluating whether the application needs closer scrutiny: a marriage of short duration; diverse cultural backgrounds; considerable differences in levels of education attained; racially mixed marriages; substantial age differences; inability to speak each other’s  language; part time living arrangements; not living together due to employment or educational reasons; prior marriage based petitions from petitioner to other beneficiaries; prior marriage based petitions for the beneficiary; not having the proper documents to substantiate the marriage; and not being properly prepared for the interview, among others.

If the marriage is prematurely terminated prior to the expiration of 2 years, the immigrant needs to meticulously document his or her good faith marriage and the reasons for the break-up.  Questions regarding the reasons why the marriage terminated may arise later in the context of a subsequent immigrant visa petition for a new spouse or if the case is denied, a new petition based on another good faith marriage. 

It is far different for those immigrants who enter into a sham marriage. An immigrant who is found to have committed marriage fraud incurs a lifetime bar  from obtaining permanent residency through family or employment-based petitions. Once the USCIS makes a finding of a fraud [sham] marriage, the beneficiary will automatically be placed in deportation proceedings. Even if the beneficiary enters into a subsequent bona fide (real) marriage, he or she will be barred from obtaining immigrant status. The petitioner and beneficiary have the burden of proving a good faith marriage. On the other hand, USCIS has the burden of proving a sham marriage.

Occasionally, an immigration examiner will mistakenly make a finding of a sham marriage based on poor documentation, poor personal presentation or improperly evaluating one of the factors listed above. Once the USCIS makes a finding of marriage fraud, they are required to provide a notice of intent to deny and give the petitioner and beneficiary an opportunity to disprove the USCIS’ allegation of a sham marriage. If the USCIS denies the application, the petitioner may appeal their finding before the Board of Immigration Appeals.

In all marriage cases, we highly recommend that you consult a reputable attorney experienced in this area of law.

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