BY ATTORNEYS  BEN LOVEMAN & NANCY E. MILLER

The Board of Immigration Appeals (BIA) issued a decision this month limiting the extreme-hardship waiver under which a conditional resident can seek removal of the conditions on their residency.  Before looking at this new case, let’s step back and look at the conditional resident legal landscape.

Conditional permanent residency is granted to a person who obtains residency through a spouse or step-parent when the marriage on which the green card is based is less than two-years old at the time residency is granted.  Congress created the conditional residency requirement to curtail immigration fraud by giving USCIS a second chance to review marriage-based cases prior to granting full resident status.  A conditional resident enjoys all the rights and privileges of a full permanent-resident subject only to the condition that they file a subsequent petition requesting USCIS to remove the [two-year] condition on their residency. 

There are two principal routes to removal of conditions.  If the couple remains married, a joint-petition (signed by both) must be filed within 90 days of the two-year anniversary of the date conditional residency was granted.  The joint-petition should be accompanied by significant evidence that the marriage was not entered into solely for immigration purposes.  Failure to timely file this petition results in automatic termination of status.  However, USCIS may consider a late-filed petition if sufficient justification is provided.

The second route must be navigated if the couple divorces or separates prior to filing for removal of conditions.  Where there is divorce, separation or unwillingness by the U.S. citizen petitioner to join in the request for removal of conditions, the conditional resident must file a petition requesting a waiver of the joint-filing requirement. A waiver petition can be filed at any time and proper filing results in the extension of the conditional permanent resident status for up to one year or until the waiver request is adjudicated.  An approved waiver results in a full, unconditional green card.

A waiver request is appropriate and may be approved where: (1) the marriage was bona fide (real) but terminated through divorce, annulment, or death (the “good-faith marriage waiver”); (2) the conditional resident was subjected to battery or extreme cruelty at the hands of his or her spouse (the “abused spouse waiver”) or; (3) termination of status and removal from the United States would result in extreme hardship to the conditional resident (the “hardship waiver”).   Each of the three waiver petitions has unique requirements which must be met but a conditional resident may simultaneously request consideration for all of the waivers if qualified.

With this framework in mind, we turn to the new BIA case. The BIA case impacts the eligibility for the extreme-hardship waiver by limiting the factors that USCIS can consider in determining the hardship.  The BIA interpreted the statute to limit the hardship determination to the facts in existence during the period of conditional residency.  Thus, if a conditional resident separates from the petitioner and then later, after expiration of the original conditional residency period, enters a new marriage or has a child, USCIS will not consider the hardship that might result to the spouse, child, or conditional resident as a result of a denial of the hardship-waiver and termination of resident status.

This change in policy is important because it further limits the already challenging prospect of gaining removal of conditional status based on the extreme-hardship waiver.  It also makes the strategic decision of how and when to apply for removal of conditions more significant.

Conditional residents, like most other married people, do not rush into divorce.  They may endure months or years of marital difficulties and/or separation before taking that irrevocable step to end the marriage.  In the meantime, the two year clock to remove the conditions is ticking.  Since a good faith waiver requires that the divorce be final, conditional resident who are separated but not divorced are not eligible to file for this waiver.

The separated conditional resident can only seek removal of conditions based on extreme-hardship and/or through the abusive spouse waiver.  Under the new BIA case, the hardship that will be considered is very narrow, thus making obtaining the hardship waiver more difficult than it had been in the past.

Evidence that the marriage was real may be strong while the hardship that the conditional resident will suffer may not be.  Or the hardship may be strong but difficult to prove.  Which waivers should be filed and when?  If the divorce is not final, how will that affect the waivers?  How will filing for divorce now affect the case? These assessments should be made by an experienced and knowledgeable immigration lawyer as soon as it is determined that a joint petition is not likely.

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