AQUINO & LOEW

Marriage is intended to be a life long commitment.  Sometimes, however, no matter how much the couple tries to sort through marital problems, a separation or 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. 

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 requires that anyone granted permanent residency within the 2 years before their wedding anniversary be granted permanent residency on a conditional basis valid for only 2 years.  Within the 90 days before the conditional residency expires, the husband and wife must file a joint petition with the Department of Homeland Security (DHS) 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.  The recent DHS memorandum clarifies the process and eligibility for individuals seeking to remove the conditional basis from their permanent residency when the spouses are separated or in the process of divorcing.  The primary factors to consider in determining the course of action are the nature of the relationship between the spouses and timing.  An assessment of these factors will determine whether a join petition by the spouses is still possible or whether a waiver of the joint petition will be necessary. 

Analysis of these factors is essential as a waiver petition, instead of a joint petition, requires that the marriage between the spouses is already terminated through a divorce or annulment.  Complications therefore arise when the marriage is not yet finalized and the petition to remove conditions must already be filed.

The DHS memo clarifies that spouses who are separated or have initiated divorce proceedings may still file the petition to remove the conditions from residency jointly.  The DHS memo further clarifies that an applicant may apply for a waiver petition even though the divorce has not yet been finalized.  These clarifications are beneficial to conditional residents who are separated from their spouse, whether divorce proceedings have been initiated or not, since it opens up the opportunity for an applicant to file either jointly or as a waiver.  Timely filing of a joint petition or waiver petition is extremely important as a conditional resident who does not file a petition automatically has their legal residence terminated and becomes subject to removal proceedings. 

For those seeking a waiver petition, the DHS memo clarifies that the DHS will provide conditional residents the opportunity to submit evidence that the divorce has been finalized.  If the divorce has still not been finalized by the time of the DHS request, then the DHS has no alternative but to deny the waiver petition and initiate removal proceedings.  While in removal proceedings, the conditional resident can still pursue the waiver petition once the divorce has been finalized.  Timing of the divorce is therefore critical to avoid a denial of the waiver petition and/or removal proceedings.

For spouses who are on good terms and are seeking a joint petition, the DHS memo clarifies that the DHS may actually still approve the joint petition even though the spouses are separated or have initiated divorce proceedings.  So long as the parties can prove that they entered into the marriage in good faith, the DHS has the authority to grant the joint petition and confer unrestricted permanent residency.  Due to the separation, however, the DHS may require an interview wherein both spouses must attend in order to be approved. 

Due to the significant concern of the DHS to combat marriage fraud, joint petitions and waiver petitions wherein the parties are separated or have initiated a divorce are scrutinized significantly.  Applications must be fully documented evidencing the bona fide and legitimate nature of the marriage, or removal proceedings may result.  Consequently, individuals must ensure that they are properly represented by counsel that fully understands the legal intricacies of the law.

For further information, please schedule an appointment at Aquino & Aquino, A Professional Law Corporation, 625 Fair Oaks Avenue, Suite 101, South Pasadena, CA, 91030; (626) 799-3089.