Petitions to Remove Conditional Residency

June 20, 2015


Since marriage to a US citizen is generally the easiest way to obtain permanent residency in the US, the immigration laws contain special provisions aimed at preventing marriage fraud.  To prevent people from getting married just for the sake of obtaining a green card, the immigration service issues a green card valid for only 2 years if a couple has not yet celebrated their 2-year wedding anniversary. 

The imposition of the 2-year conditional residency period is specifically designed to address the common marriage fraud scheme of getting married, getting a green card, and then soon after getting divorced.  Marriages of such short duration are considered suspicious.

To extend the green card, the couple must jointly file a petition with the Department of Homeland Security (DHS) within 90 days before the green card expires.  If the couple fails to timely file the petition, they must file the petition as soon as possible with an explanation setting forth valid and legitimate good cause as to their lateness.  Otherwise, failing to file the petition to remove conditions will result in the automatic termination of the individual’s permanent resident status and initiation of removal proceedings. 

The immigration laws, however, also recognize that some times legitimate and bona fide marriages just do not work out.  With the high divorce rates in the US, the immigration laws do naturally take into account that many couples experience marital problems, separations, and also divorce.

Accordingly, for an individual who is granted conditional permanent residency and is experiencing marital problems, careful individualized assessment on the best course of action to take must be considered as soon as possible.  Individuals who are faced with marital problems cannot fail to file a petition as removal proceedings will be started against them. 

For couples who are separated but on good terms, a joint petition that honestly describes their marital strife may be the best course of action so long as both people are willing to actively participate in the processing of the petition. 

More commonly, however, individuals separated from their spouse can pursue a waiver of the joint filing requirement.  A waiver is available for individuals who entered into the marriage for legitimate and bona fide reasons, but the marriage has been legally terminated.  This waiver can only be granted once a marriage has been dissolved or annulled by the courts, so it is important for individuals to plan ahead since a divorce in California takes a minimum of 6 months.  Waiting too long could result in the inability to timely finalize the waiver, which could lead to the initiation of removal proceedings.  While the waiver petition may be renewed in removal proceedings, the situation will certainly create additional anxiety and costly legal fees to adequately defend oneself in removal proceedings.

​Given that the 2-year conditional residency was initiated specifically to combat marriage fraud by those who seek divorces soon after obtaining a green card, individuals must realize that a bona fide marriage waiver petition will be strictly and thoroughly scrutinized.  The DHS will expect documentary evidence of the couple’s joint residency and commingling of their marital transactions, such as joint bank accounts, joint credit cards, joint insurance, etc.  Lack of such documentation may lead to great difficulty in persuading an immigration officer that an individual has been in a legitimate and bona fide marriage.  An individual must also be prepared to furnish an explanation of what led to the break-up of the marriage, which is often emotionally difficult but vital to demonstrating the legitimacy of the relationship.

Other types of waivers also exist should an individual not be eligible for a bona fide marriage waiver.  A waiver is available if the US citizen spouse has passed away.  Another waiver is available for those who have been “battered or subjected to extreme cruelty” by the US citizen spouse.  This includes not only physical abuse, but also psychological and emotional abuse.  There is also a waiver available to those who can prove that they would suffer extreme hardship if they were not allowed to retain their green card.

Due to the significant concerns of the DHS to combat marriage fraud, it is important for individuals to comply with the timely filing of the joint petition or waiver petition.

For those who are experiencing marital problems, it is extremely important to seek out guidance well in advance so that a proper course of action can be charted to make an already difficult situation hopefully not too problematic.

​​​​​For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter.  Aquino & Loew also handles family law and criminal matters.  Providing Personalized Service Nationwide & Abroad Since 1996.