You asked: Help! I received my green card through marriage to a U.S. citizen, but my marriage is coming to an end and I’m still a conditional resident. Can I file a petition to remove conditions on residency by myself without the help of my U.S. citizen spouse?
Ending a marriage is a difficult and stressful decision. The anxiety is compounded when your immigration status in the United States is derived from your marriage to a U.S. citizen. Fortunately, U.S. immigration law recognizes situations where marriages don’t work out and tries not to penalize conditional residents in these situations. Learn more about removing the conditions on residency below.
Let’s look at some background. Marrying a U.S. citizen for the sole purpose of obtaining an immigration benefit is illegal. Thus, to prevent immigration fraud, when a noncitizen obtains permanent residency in the U.S. (“a green card”) by marrying a U.S. citizen, the U.S. Citizenship and Immigration Services (USCIS) often grants conditional residency. This is done when the marriage occurred fewer than two years prior to the date permanent residency was granted.
A conditional resident and a permanent resident are essentially the same thing with one important distinction – conditional residents are only approved for two years. At the end of the two-year conditional residency period, these immigrants must file a petition requesting full permanent residency. The petition to remove conditions affords immigration authorities with a second opportunity to review the marriage and reaffirm that it was not fraudulent. That is, at the end of two years, the U.S. citizen petitioner and the resident spouse must prove that their marriage was legitimate at the beginning and continues to be so. The thought is that if a marriage continues to be valid after two years it probably was legitimate at the beginning.
For couples who continue to be married, removing the conditions on residency can be simple. The process can become more troublesome when the marriage no longer continues to be valid. In situations of divorce, separation, domestic violence, or death, filing a joint petition may be impossible. This situation can create legal pitfalls that must be carefully avoided.
The Basics: Removing the Conditions on Residency
If you received conditional residency because you were married for fewer than two years at the time your residency was approved, you must file a petition to remove conditions before the expiration of your status. If you continue to be in a valid marriage, the situation is relatively simple. Here’s how that looks:
- The U.S. citizen petitioner and resident spouse jointly file a petition to remove conditions 90 days before the expiration of the conditional residency
- The joint petition contains evidence that the marriage continues to be valid and ongoing. Joint financial records, family records, and religious documents are routinely included.
- The USCIS schedules an interview. While an interview is not required in every case, often immigration authorities want to interview the couple as part of the process of removing conditions. In this scenario, the couple attends the interview and answers questions about their petition and their marriage.
- The USCIS issues the permanent residency card. After the immigration officer approves the petition, the immigrant will receive a green card that is valid for 10 years.
If a child received conditional residency at the same time as a conditional resident parent, the child may be included in the same petition to remove conditions. In this case, the child will receive a 10-year green card at the same time as the conditional resident parent. However, if a child received conditional residency more than 90 days after the conditional resident parent, that child must file a separate petition to remove conditions. That petition will be processed separately from the conditional resident parent’s petition.
Again, this is the process for filing for removal of conditions if the marriage continues to be valid. Next, let’s look at the more difficult situation of filing a petition to remove conditions when the marriage no longer is valid because of divorce, separation, domestic violence, or death of the U.S. citizen spouse.
Waiver: Filing a Solo Petition to Remove the Conditions on Residency
Just because a marriage is no longer valid at the two-year mark does not mean that it was illegitimate to begin with. Provided the marriage was legitimate when it was entered into, the USCIS should approve a petition to remove conditions even if it cannot be filed jointly because of death, divorce, domestic violence, etc. Certainly, filing a solo petition complicates the process considerably, but it does not make the process impossible. In these cases, the immigrant must request a waiver of the joint filing requirement.
Requesting a waiver of the joint filing requirement requires the conditional resident to prove that the marriage was legitimate when it was entered into, but that it ended because of divorce, cruelty, domestic violence, or death of the U.S. citizen petitioner. The conditional resident must also prove that departing the U.S. would be extremely hard.
Proving these items can be difficult, but the key is to obtain significant evidence that shows them to be true. The evidence listed above can be helpful as can letters and affidavits from family, friends, clergy, etc. This evidence should be current up until the point that the marriage no longer continued to be valid.
In the unfortunate situation of domestic violence, cruelty, or abuse, the conditional resident should provide police reports, social service documents, hospital records, affidavits from caregivers, etc. that describe the nature of the abuse. And, if the U.S. citizen petition has died, the death certificate should be included in the waiver request.
Filing Timeline for Removing the Conditions on Residency
Petitions to remove conditions on residency should be filed within 90 days of the expiration of the conditional residency (the date listed on the card). If the petition is filed late, the conditional resident might face serious immigration consequences. These consequences include termination of residency status, deportation proceedings, and potential bars to reentering the U.S. in the future.
For solo petitioners seeking a waiver, the petition may be filed at any point prior to the conditional resident’s removal from the U.S. However, moving quickly might be a good strategy, as documentation often becomes more difficult to obtain with the passage of time.
Finally, consider the situation where the conditional residency card has expired but the permanent residency card has not yet been issued. Even if this is the case, provided the petition to remove conditions was filed on time, the conditional resident may continue to work in the U.S. until immigration authorities rule on the petition. In this situation, the conditional resident can use the receipt notice as proof of continued status and employment authorization.
We Can Help if You Have Questions About Removing the Conditions on Residency
Anyone going through the death of a spouse, domestic violence, divorce, or separation is facing an incredibly difficult and stressful time. Making sure your immigration status continues to be valid during such times can be overwhelming. We are here to help.
The George McCranie Law Firm has extensive experience in removing the conditions on residency when the petition requires a waiver. Contact us today to discuss your case.