Waivers for Removing Conditional Residency
July 10, 2008
Marriage is intended to be a life long commitment. Sometimes, however, no matter how much the couple tries to sort through marital problems, a divorce just seems to be the only feasible solution. This unfortunate reality of life is complicated when an individual has been granted permanent residency on a conditional basis. Therefore, this article will discuss the various waivers available to an individual who has been granted conditional residency to the US, but who is unable to file the joint petition to remove the conditions due to the breakdown of the marriage.
The granting of conditional residency was initiated in 1986 with passage of the Immigration Marriage Fraud Amendments (IMFA). In an effort to combat marriage fraud, IMFA added section 216 to the Immigration and Nationality Act, which imposes an initial 2-year period of conditional residency to a person who acquires permanent residence status based on a marriage that is less than 2 years old. Within the three months before the conditional residency expires, the husband and wife must file a joint petition with the CIS evidencing their continued marriage in order to remove the conditions from the residency.
Problems arise, however, when there has been a breakdown in the marriage that causes a husband and wife to no longer be residing with one another. In these situations, the individual must file a waiver of the joint petition. If the waiver is not filed, then the individual’s residency is automatically terminated and the possibility of removal becomes a reality.
There are several bases for requesting a waiver. First, a waiver is available if the US citizen or permanent resident spouse has passed away.
Another basis is that the non-citizen entered into the marriage in good faith, but that he/she has been “battered or subjected to extreme cruelty” by the spouse. This includes not only physical abuse, but also psychological and emotional abuse. The application must be substantiated by documents evidencing the abuse, such as medical reports, police reports, psychological reports, witness affidavits, etc.
A third basis for waiving the joint petition requirement is that the non-citizen would suffer extreme hardship if the waiver is not granted. Again, documentation evidencing the extreme hardship to be experienced must be included in the application.
The final basis for waiving the joint petition involves the most common situation. It requires the conditional resident to prove that he/she “entered into the marriage in good faith, but the marriage was terminated through divorce/annulment.” The standard for showing a good faith marriage is exceptionally high, and must therefore be evidenced through extensive documentation and an interview.
Additionally, the timing of a divorce is extremely important when requesting a waiver based on the good faith nature of the marriage. To file the waiver petition, it is required that the divorce already be finalized, rather than just simply filed and pending. Since a divorce in California takes at least six months, an individual must timely file a divorce to ensure that it is finalized before the expiration of the conditional residency. Otherwise, the individual’s conditional residency will automatically be terminated and the individual will be subject to removal proceedings.
Due to the significant concern of the CIS to combat marriage fraud, waiver applications to remove the conditions from residency are exceptionally difficult. Applications must be fully documented evidencing the bases for the waiver petition, or removal proceedings may result. Consequently, individuals must ensure that they are properly represented for these applications.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.
© 2008 Aquino & Aquino, APLC. All rights reserved.
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