To protect against marriage fraud, the Immigration Marriage Fraud Amendments of 1986 (modified by the Immigration Act of 1990) prescribed certain rules for certain non-citizens and their sponsoring spouses.
If your marriage to your United States Citizen spouse or Legal Permanent Resident spouse is less than two years old at the time that you are granted resident status, your green card will be issued conditionally. This means that two years after you are granted resident status you will need to file to have the condition removed with USCIS. You may file for the release of the condition within a 90-day window before the two years is reached.
Example: Laura is married to John, a United States Citizen, for 18 months when she appears for her interview. The USCIS officer issues her a conditional green card on April 1, 2006. Laura may file for the release of the condition beginning with January 1, 2008 and through March 31, 2008.
As a conditional resident you have all of the rights and privileges of lawful permanent residents. In other words, you accumulate time toward naturalization eligibility, you may file immigrant visa petitions for relatives, you may reside permanently in the United States, and you have the right to work. You must register with the Selective Service system when required.
If your marriage to your United States Citizen spouse or Legal Permanent Resident Spouse is more than two years old at the time that you are granted resident status, you will be issued a permanent green card. In other words, you will not need to remove the condition after two years.
If your marriage to your United States Citizen or Legal Permanent Resident spouse occurred during deportation or exclusion proceedings, you must prove by clear and convincing evidence that your marriage was entered into in good faith. Good faith means that you entered into the marriage with commitment of indefinite duration and not for a green card.
If you obtained your green card through marriage and divorced, as a Legal Permanent Resident you are restricted from sponsoring your subsequent spouse.
REMOVING THE CONDITION
Hart Immigration has filed and successfully represented numerous conditional residents in removing the condition on their green card.
You and your spouse must jointly file to remove the condition. If you cannot file jointly with your spouse, due to death or separation or divorce, you will file alone requesting a waiver of the joint filing requirement, as discussed further below. Your children can be included on your petition if they immigrated with you or within 90 days of your immigration.
If you do not properly file for a release of the condition within the 90-day window, your permanent residence automatically terminates and USCIS may initiate removal proceedings.
In seeking a release of the condition, the burden is upon you to prove that the marriage was not entered into for the purpose of obtaining a green card. The Orange County office of Hart Immigration will meet that burden by carefully documenting the joint petition with evidence demonstrating the good faith of the marriage. In most cases, USCIS will make a decision based on the petition and there is no interview.
If an interview is scheduled, our office will appear with you and your spouse. If the USCIS officer finds that the marriage was valid and was entered into in good faith, that the marriage during the two year period was not annulled or terminated and that no fee was paid to the sponsoring spouse as an inducement to filing the visa petition, s/he will approve the joint petition, remove the condition and grant you permanent resident status.
WAIVER PETITION WHEN THE JOINT PETITION CANNOT BE FILED
If you are a conditional resident who is divorced or widowed or whose spouse will not sign the joint petition or will not attend the interview, you must request for a waiver of filing the joint petition.
If you are separated with or without hope of reconciliation, you may still file the joint petition. The success of your application will depend upon the amount of time you lived together and the amount of good faith evidence you can provide. Experience has shown, however, that the chances for success are greater in this situation if you apply for a waiver.
GROUNDS FOR WAIVER
USCIS may only consider your hardship if you were not allowed to remain in the United States. The hardship can be to you, your dependent child or your subsequent spouse. Separation from family or financial difficulties alone is usually insufficient to prove extreme hardship. This is usually a difficult burden of proof to overcome but the Los Angeles Office of Hart Immigration, will diligently prepare a case with the best odds for success.
You must show that you entered into the marriage in good faith. USCIS will look for evidence relating to the amount of commitment by both parties to the marriage. Evidence such as commingling of financial assets and liabilities, the length of time that you cohabited after the marriage and after USCIS approved the conditional resident status, birth certificates of children born to the marriage and any other pertinent evidence will be duly considered.
Battered Spouse or Child
Whether you are still living with, separated or divorced from your spouse, you qualify for the waiver if you entered into the marriage in good faith. Additionally, you must show that you or your child was battered by or subjected to extreme cruelty by your spouse or parent.
If you were the victim of any act or threatened act of violence, including forceful detention, which results or threatens to result in physical or mental injury, you have been battered and subjected to extreme cruelty. Acts of violence include sexual abuse or exploitation, rape, molestation, incest or forced prostitution.
Due to the confidentiality of the information, the documentary evidence in these types of waivers is extremely sensitive and varies on a case-by-case basis.
NATURALIZATION OF A CONDITIONAL RESIDENT
Your initial admission as a conditional resident starts the clock ticking towards your eligibility to naturalize. If you are still married to and living with your petitioning spouse, you may file for naturalization 90 days before you have achieved 3 years of resident status.
Hart Immigration provides immigration services in Los Angeles, Orange County, and surrounding areas.