The Immigration Marriage Fraud Amendments of 1986 (IMFA) requires an alien obtaining a green card through a marriage less than two years old to come back at the end of that two years with the petitioning spouse and show that they are still married or, if the marriage was terminated, to show that the marriage was entered in good faith before the USCIS will issue them a permanent (unconditional) greencard.
Any alien who obtains a green card through a spousal petition by virtue of a marriage entered less than twenty four months before the status is obtained will only receive a conditional green card under INA §216(d). To remove this condition, both spouses must file a form I-751 with the USCIS within 90 day period preceding the expiration of the conditional green card along with other supporting documents showing the marriage was entered in good faith.
However, sometimes alien spouses are not able to file this Joint Petition to remove the condition on their green card because the couple got divorced or are in the process of filing a divorce and is having difficulties getting the cooperation of the US citizen spouse. When the alien spouse falls into this situation, it is still possible for them to obtain their permanent green card by filing a waiver. The waiver must be based on one of the following reasons 1) Extreme hardship would result if such alien is removed 2) The qualifying marriage was entered in good faith by the alien spouse, but … has been terminated (divorce), and the alien was not at fault in failing to timely file the joint petition and attend the interview; or 3) The qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by the US citizen parent or permanent resident spouse or parent and the alien was not at fault in failing to file the joint petition and attend the interview. INA §216(c)(4); 8 CFR 216.5
If you have a conditional green card and your are having difficulty obtaining cooperation from your US citizen spouse in signing a joint petition to remove this conditional green card, you should consult an attorney to assist you in planning for and obtaining a waiver.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
