By Attorney Robert L. Reeves and Devin M. Connolly

A person who gets a green card based on marriage will be granted conditional permanent resident status if the marriage is less than two years old at the time the status is granted.  Conditional resident status is granted for two years.  At the end of that time, the couple must file a request that the condition (i.e. the 2 year limitation on the green card) be removed. 

Congress recognized that desperation to obtain lawful status may lead otherwise-honest people to marry solely for the purpose of getting a green card.  However well-meaning the intent of the parties, the fact remains that marriage to evade immigration law is fraudulent and unlawful.  The U.S. Citizenship and Immigration Service (USCIS) must determine whether the marriage is “bonafide” or a “sham.”  The term “bonafide” refers to a marriage between two people who have the intent to establish a life together, whereas the term “sham marriage” refers to a marriage where the only purpose of the marriage is for one of the parties to obtain an immigration benefit.  Obviously, the USCIS will only issue permanent resident status to those in bonafide marriages.

The parties must prove what their intent was at the time that they entered into the marriage. However, USCIS looks to the actions of the parties after the wedding to determine what that intent was.  Congress created conditional permanent resident status because newly-married couples don’t have enough persuasive marital-community documentation when they file the initial paperwork.  Congress’ rationale was that, after being married for two years, the conditional permanent resident and spouse should have sufficient documentation to allow an immigration officer to evaluate the validity of the marriage.

Joint petitions and supporting documentation to remove the condition must be filed 90 days before the second anniversary of the date the non-citizen became a conditional resident.  After the timely filing of the joint petition, the green card is extended for the pendency of the adjudication process.  If the petition is not timely filed, the permanent resident status is terminated and the immigrant may be placed into removal proceedings.

Unfortunately, marriages are sometimes terminated prior to the removal of conditions.  If the marriage has been terminated, it is not possible to file or pursue a joint petition.  In these instances the USCIS allows the conditional resident to request a waiver of the joint filing requirement.  A waiver of the joint-filing requirement may be filed at any time.

There are three different categories of waivers:  where the immigrant would suffer extreme hardship if she had to return to her home country; where she has suffered battery or extreme cruelty at the hands of her USC spouse; or, where she entered into the marriage in good faith and the marriage has been terminated other than through the death of the USC spouse.  It is the immigrant’s burden to prove that they qualify for the waiver.

By its definition, the good faith waiver requires that the marriage be terminated at the time the waiver is requested.  Termination can be the result of divorce or annulment.  If the termination was not amicable, the USC may allege fraud on the part of the immigrant.  This allegation must be successfully refuted in order for the condition to be removed.

A waiver based on battery or extreme cruelty can be filed before the marriage is terminated.  The immigrant must show that the marriage was entered into good faith and that the non-citizen was subjected to battery or extreme cruelty during the marriage.  Extreme cruelty includes psychological and emotional abuse as well as physical violence.   This waiver is very empowering because the immigrant can obtain safety and immigration status.

Extreme hardship waivers can also be sought without the marriage having been terminated.  The conditional resident must establish that she would suffer extreme hardship if forced to return to the home country. Extreme hardship requires a showing of more hardship than would normally be expected for someone in that situation.  Only hardship that occurred during the period of conditional residency will be considered.  Where the parties can and do file a joint petition and it is not withdrawn but is denied, the immigrant cannot file an extreme hardship waiver.

Preparation and presentation of evidence to successfully meet the burden of proof for removal of conditions is a complicated process.   It becomes more challenging when a waiver is required.  It is important to obtain the representation of a knowledgeable and experienced immigration lawyer to meet that burden and keep your green card.

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