JAMES had just finished with his Adjustment of Status interview based on the immigrant petition of his wife, Kimberly. At the end of the interview, they were given a piece of paper entitled “Removal of Conditional Status” and the Immigration Officer made them both sign. A year-and-a-half later, Kimberly filed for divorce and left James. Closing in on the 2-year anniversary of their marriage, James is wondering what is the “conditional status” that was given to him, and what does it mean now that he and Kimberly are divorced?
Under the Immigration and Nationality Act Section 216, a non-citizen spouse and his/her non-citizen son(s) or daughter(s) “shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis . . . ” Section 216 goes on to state that there is a notice requirement: “At the time an alien spouse or alien son or daughter obtains permanent resident status on a conditional basis . . . the Attorney General shall provide for notice to such a spouse, son, or daughter respecting the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed.”
What is a conditional permanent resident status? A conditional permanent resident status means that a non-citizen foreign national has obtained the status of an alien lawfully admitted for permanent residence as an immediate relative spouse of a citizen of the United States, as the fiancé/e of a citizen of the United States, or as the spouse of an alien lawfully admitted for permanent residence, by virtue of a marriage entered into less than 24 months before the date the status was obtained by virtue of the marriage.
What is the notice requirement? Under the Act, the Attorney General shall provide notice at the time a non-citizen spouse or son or daughter obtains permanent resident status on a conditional basis. This notice is usually provided at the time of the Adjustment interview or upon entry into the United States under an immigrant visa as an immediate relative spouse of a citizen of the United States, or as the spouse of an alien lawfully admitted for permanent residence.
Requirements of timely petition and interview for removal of condition. In order for the conditional basis of a non-citizen spouse or a non-citizen son or daughter to be removed, the non-citizen spouse and the petitioning spouse jointly must submit to the Attorney General a petition which requests the removal of such conditional basis. The petition must be filed during the 90-day period before the second anniversary of the non-citizen spouse’s obtaining the status of lawful admission for permanent residence. The interview for this petition shall be conducted within 90 days after the date of submitting the petition.
Waiver in certain cases. Failure to remove conditions on residence will result in the termination of the permanent resident status of the non-citizen foreign national, and s/he will be put in removal proceedings. In certain situations where the non-citizen spouse is unable to file the petition jointly with his/her petitioning spouse, a waiver might be applicable. A waiver may apply if a non-citizen spouse is able to demonstrate that extreme hardship would result; the qualifying marriage was entered into in good faith but the marriage has been terminated and the non-citizen spouse was not at fault in failing to meet the removal of condition requirements; or the qualifying marriage was entered into in good faith and during the marriage the non-citizen spouse or child was battered by or was the subject of extreme cruelty perpetrated by the U.S. citizen or permanent resident spouse non-citizen was not at fault in failing to meet the removal of condition requirements.
Given the gravity of the consequences for failing to remove conditions on residence, it is important to seek meaningful advice from an experienced immigration attorney well before taking any steps, especially if one is unsure as to the immigration processes. Where there is a threat of being put in removal or deportation proceedings, an immigration attorney specializing in deportation defense would be able to provide the most beneficial advice in a situation.
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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
