December 01, 2017
The United States Citizenship and Immigration Service (USCIS) is encountering significant delays in the processing of petitions to remove the conditions from permanent residency. The average processing time for a petition jointly filed by spouses is now anywhere from 13 to 15 months. Waiver petitions are taking even longer. The considerable delays are not just annoying, but can be rather troublesome for those wishing to travel or provide evidence of their employment eligibility.
Conditional residency is a way for the USCIS to prevent marriage fraud from taking place. 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 USCIS 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 sometimes 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 need to pursue a waiver of the joint filing requirement as typically a spouse will not agree to filing the joint petition. 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 USCIS 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.
When a joint petition or waiver is filed, the individual is issued a receipt notice that indicates that their permanent resident status is automatically extended for 1 year. Individuals can use the receipt notice, along with their expired green card, to travel internationally and prove that they continue to have authorization to work.
Since it is now taking more than 1 year to process the petition, individuals are encountering problems and are left unclear about their status. Individuals in this situation do in fact continue to be permanent residents even after the 1 year period. If there is a need to travel or prove employment eligibility, individuals can obtain a Form I-551 stamp from the USCIS to prove their continued permanent resident status.
Moreover, individuals are often eager to proceed with naturalization so that they can then petition other family members. Individuals do not need to wait for the petition to remove the conditional residency to be granted. Rather, they can and should proceed once they are eligible, which is generally 90 days before their 3 year anniversary as a conditional resident. The USCIS will consolidate the two applications so that time is not wasted on becoming a US citizen.
Due to the significant concerns of the USCIS to combat marriage fraud and the delays now being encountered, 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.