WITH the New Year comes the opportunity to reflect on our lives and to set goals for ourselves during 2012. Many of these goals will revolve around health, work, and family. It is also the perfect time to set a goal to seek answers and resolutions to immigration problems.
One problem that is common and requires professional attention is that of a person who obtained conditional residency through a spouse, but now the marriage is ending. An alien who marries a U.S. citizen may apply to adjust status and become a lawful permanent resident. If the marriage is less than two years old at the time the application is filed, they will be given what is known as conditional residency. This type of residency lasts for two years. In order to remove the conditional status and become a permanent resident, a request must be filed with U.S. Citizenship and Immigration Services. This request is made by filing form I-751 with proper documentation within the ninety days prior to the two year anniversary of when the conditional residency was granted. When the couple is still married they file this application together in what is known as a joint petition. The majority of petitions to remove the conditions of residency are taken care of through a joint petition, and typically no interview is required. Problems arise, however, when you get divorced during the conditional period or your divorce is pending and the spouse refuses to participate in the joint petition.
If you are divorced at the time when you petition to remove the conditions of residency you may not submit a joint petition with your former spouse, even if the divorce was amicable. The way to become a permanent resident is to obtain a good faith marriage waiver. To do so, you must provide evidence to U.S. Citizenship and Immigration service that you are divorced by presenting a divorce decree. You must additionally provide any evidence available to prove that the marriage was entered into in good faith and not for immigration purposes. An experienced immigration attorney will be able to advise you as to what evidence is available to you and is most effective.
If you are married when first filing a joint petition, but subsequently obtain a final decree of divorce while the petition is pending, you must notify the Citizenship and Immigration Service of the changed circumstances and request that your joint petition be changed into a good faith marriage waiver petition.
If you are separated or going through a divorce at the time you file to remove the conditions of residency, you may still file a joint petition with your spouse if he/she is willing to do so. Your application will not be denied just because you are going through a divorce or are separated at the time, but the separation or impending divorce must be divulged in the application.
The process becomes more difficult if you are separated or filing for divorce and your spouse refuses to participate in the joint petition. In this case the only option is to submit a good faith marriage waiver and notify the office that you are separated or that the divorce is pending. If you do this, an immigration officer handling your case will send a letter requesting a copy of the final divorce decree within 87 days. If you are able to present the decree in a timely fashion, the immigration service will make a determination as to whether or not the marriage was entered into in good faith. If you do not provide a divorce decree within the 87 days, your conditional residency is terminated and you may be placed in proceedings to be removed from the United States. However, you will still be able to request a good faith marriage waiver in immigration court once the divorce is final.
With the right assistance you will be on your way to the path of permanent residency despite your divorce. The lawyers of Wilner & O’Reilly have the experience and knowledge to work with you to be sure that you are eligible for a good faith marriage waiver and what steps should be taken going forward. Should you need assistance with any problems regarding conditional residency or any immigration matters, please do not hesitate to contact us at (562)207-6789 or visit us on the web at www.wilneroreilly.com.
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Richard M. Wilner is a principal in the firm of Wilner & O’Reilly, APLC. He is Board Certified as a Specialist in Immigration and Nationality Law by the State Bar of California’s Bureau of Legal Specialization. He is a former Commissioner for the State Bar’s Immigration and Nationality Law Advisory Commission. Mr. Wilner may be reached directly via email at [email protected] or by telephone at 714-919-8880
