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The Impact of Changes in Family Status on the Alien's Immigration Process such
as Divorce From, Death of, Or Abuse by a USC Or LPR Spouse
This information is provided in the most general of terms and is not intended to address any specific case. Please read the Terms of Service before continuing.
Part D ~ Prior to Removing Conditions on Permanent Residency
The marriage-based immigration process can take at least a number of years to complete. But what if the journey is interrupted by a divorce, the untimely death of the US citizen petitioner or even abuse?
Q: What Section of the Immigration and Nationality Act pertains to this stage?
A: For the part of the law concerning conditional resident status based upon marriage, please see Section 216 of the Immigration and Nationality Act, INA § 216. Specific eligibility requirements and procedures for removing conditions on permanent resident status are included in title 8 of the Code of Federal Regulations: 8 CFR § 216.
Q: Does a divorce affect status as a conditional permanent resident?
A: If the conditional permanent resident can show that the marriage was entered into in good faith, it is presumed that the alien was not at fault for failing to file a joint petition, then the alien can apply to remove ‘conditions’ on permanent residency by submitting a waiver of the joint filing requirement for Form I-751. A copy of the divorce decree and all evidences to support the bona fide nature of the marriage should accompany the waiver.
Q: Is this the only way to remove conditions?
A: According to the law, detailed in 8 CFR 216.5, the alien can petition to remove conditions by way of a waiver of the joint filing requirement with the US citizen spouse. The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:
--o The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;
--o The refusal of the petitioning spouse to join in the filing of the petition;
--o A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);
--o The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent.
The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)
To qualify for the ‘good faith’ or ‘bona fide’ marriage waiver, the conditional resident must show that the intent was to have a bona fide marriage at the point when the alien married, that the marriage terminated in divorce or annulment and that it was not the alien’s fault that a joint petition could not be filed.
For the extreme hardship waiver, the conditional resident must show that, if removed, the alien would suffer hardship above and beyond that which a person who is forced to leave the United States normally suffers.
Section 204(a)(1)(A)(iii) of the INA, enacted in September 1994, provides for abused spouses to petition for permanent resident alien status on their own behalf (and for their children), supplementing the regular procedures which rely on the abuser to petition for them. For the battered spouse or extreme cruelty waiver, the conditional resident must show that the alien was married in good faith and that the US citizen spouse subjected the alien to battery and/or extreme cruelty.
Q: I have to file a waiver for removing conditions. What type of evidence should I submit?
A: The regulations call for the alien to supply --o Evidence to establish the facts of the case on which the alien is seeking the waiver; and
--o Evidence that the marriage was not entered into for the purpose of evading the immigration laws of the US.
Q: OK, but what type of evidence is that?
A: The Form I-751, with Part 2 box “d� checked and a copy of the divorce decree and evidence that you cohabitated with your US citizen spouse, and commingled your finances. For the basis of eligibility to submit the waiver, 8 CFR 216.5(e)(2)(iv). States that the additional documentation that can be submitted to qualify for certain waivers may include:
--o Death Certificate of USC or LPR spouse
--o Final Divorce Decree.
And in the way of evidence of the bona fide nature of the marriage, 8 CFR 216.4(a)(5) and 216.5(e)(2) states that documentation that can be submitted to establish the bona fides of the marriage may include, but is not limited to:
--o Several verifiable documents showing the co-mingling of finances (i.e., joint bank accounts, mortgages, jointly filed income tax returns signed by both parties, etc.).
--o Documents showing joint residence of the Conditional Permanent Resident (CPR) and petitioning spouse for a large portion of their lives as husband and wife (i.e., joint apartment leases, deeds, etc.).
--o Joint insurance policies (i.e., life, health, etc.).
--o Birth certificates of children born to the couple.
--o Affidavits of third parties having knowledge of the bona fides of the marital
relationship.
Q: Before I could apply to have the conditions removed, my US citizen spouse and I divorced. Does this affect status as a conditional permanent resident?
A: Generally speaking, if the conditional permanent resident can show that the marriage was entered into in good faith, it is presumed that he was not at fault for failing to file a joint petition, and should not impact future status.
Q: I am now divorced. How do I remove conditions from my permanent residency?
A: To remove conditions from permanent residency, a waiver of the joint petition will be filed, noting that the marriage terminated in divorce. You will be required to provide a copy of the divorce decree and all evidence to support your contention that the marriage was bona fide.
Q: I can find form I-751 for aliens that are still married, but which form do I use if I am divorced?
A: Form I-751 is also used as the waiver request. Note on the form, Part 2 box “d� would be checked.
Q: Before I could apply to have the conditions removed, my US citizen spouse and I separated. Does this mean we can’t file a joint petition?
A: If the US citizen spouse is willing to jointly file, you may, since the marriage is not legally terminated. The April 2005 Flash #19-2005 issued by NSC spells out the current procedural recommendations for aliens that are separated or divorced at the time an I-751 should be filed, or separate or divorce after a joint I-751 has been filed.
Q: Before I could apply to have the conditions removed, my US citizen spouse and I divorced. Does this mean we can’t file a joint petition?
A: Yes. According to the memorandum issued by NSC (#19-2005), if the petitioner and beneficiary are divorced at the time the I-751 should be filed, the beneficiary should file the I-751 (only the alien needs to sign it) and mark "d" in Part 2. If the divorce occurs prior to the filing deadline, the alien can file Form I-751 as soon as a divorce decree is available.
Q: We applied jointly to have the conditions removed, my US citizen spouse and I have since separated. Do I have to do anything?
A: The NSC Flash #19-2005 calls for the alien in such a case, to notify the NSC that he or she is currently separated by mailing an explanation to the NSC at PO Box 82521, Lincoln NE 68501-2521. The alien should also submit a change of address Form AR-11 within 10 days of a move. If there are pending immigration benefits, as in a petition in process, the alien should follow additional requirements for notifying USCIS of the new address.
Q: We applied jointly to have the conditions removed, my US citizen spouse and I have since divorced. Do I have to do anything?
A: The NSC Flash #19-2005 calls for the alien in such a case to notify the NSC that he or she is divorced, and submit a copy of the divorce decree to the NSC at PO Box 82521, Lincoln NE 68501-2521. If the alien has moved since filing the joint petition, the alien should also submit a change of address Form AR-11 within 10 days. If there are pending immigration benefits, as in a petition in process, the alien should follow additional requirements for notifying USCIS of the new address.
Q: The deadline for filing to remove conditions is approaching, but my US citizen spouse and I have separated. Can we still file a joint petition?
A: The NSC Flash #19-2005 stipulates that the petitioner and beneficiary may still file a joint petition if the petitioner is willing to sign the petition. If the petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file a petition requesting a waiver of the joint filing requirement due to divorce until the divorce is final UNLESS abuse is the basis for such a filing. The alien’s status may be terminated because he or she has been unable to file a timely I-751 and he or she may be placed in removal proceedings.
Q: The deadline for filing to remove conditions is approaching, but I am in divorce proceedings. The divorce will likely not be final before the deadline. What should I do?
A: The NSC Flash #19-2005 stipulates that the petitioner and beneficiary are still eligible to file a joint petition if the petitioner is willing to sign the petition. If the petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file a petition requesting a waiver of the joint filing requirement due to divorce until the divorce is final UNLESS abuse is the basis for such a filing.
Q: The deadline for filing to remove conditions is approaching, but I am in divorce proceedings. Can I submit the waiver?
A: No, the alien must await a divorce decree in order to submit the waiver. See the April 2003 memo from William Yates entitled Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage
Q: Shortly after receiving the conditional green card, the US citizen spouse and I divorced. Do I file the waiver 90 days before the conditional green card expires?
A: In the case of divorce from the US citizen petitioner, the alien can petition to remove conditions as soon as the divorce decree is available.
Q: The US citizen and I are on good terms, even though we’re now divorced. Can he sign the joint petition with me?
A: No. The statutes prohibit the adjudication of a joint petition when the parties have divorced. You should file a waiver but if your ex-husband is willing, he could provide an Affidavit to assist in proving the marriage was bona fide.
Q: We separated and have lived apart for a while, but we’re not divorced. Can we submit a joint petition?
A: Yes. Once again, if the US citizen spouse is willing, you may jointly file. Bear in mind that form I-751 asks if the alien resided at any other address since becoming a permanent resident (If yes, attach a list of all addresses and dates.), which would corroborate information provided on AR-11s.
Q: We separated and divorced, but we reconciled and now we are remarried. Can we submit a joint petition?
A: In complex situations like this, it is wise to consult an experienced immigration lawyer. Technically, as soon as the marital relationship through which you were conferred LPR ended, you were eligible to file a waiver I-751.
Q: I came to the USA as a K2; my alien parent married a US citizen. Before I could apply to have the condition removed, my parents divorced. Does this affect my status as a conditional permanent resident?
A: Yes. Your conditional permanent residence was based on your relationship to alien parent’s US citizen spouse.
Q: What if divorce has begun, but I’m not yet divorced and the deadline to remove conditions is here?
A: An alien who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced but are not yet finalized, may not apply for a waiver of the joint filing requirement based on the “good faith� exception. A divorce decree is required in order to file a waiver Form I-751.
If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge.
Q: Must I be physically present in the United States to file the I-751 petition or waiver?
A: No, the petition or waiver may be filed regardless of whether the conditional resident is physically present in the United States. However, the conditional resident must return to the United States if required to appear for an interview.
Q: Do I include my child on the I-751 or waiver?
A: It depends. If the child obtained permanent resident status based on the alien parent’s marriage to a United States citizen and the marriage occurred less than two years before admission or adjustment to permanent residence, the child will also be a conditional resident. If the alien child acquired status at the same time or within 90 days of the alien parent, they can be included on the alien parent’s I-751 petition or waiver. Children that entered the U.S. or adjusted status more than 90 days after the conditional resident parent must file a separate form I-751. The alien’s children can be included on their parent's I-751 petition if they immigrated at the same time or within 90 days of their alien parent. They are considered to have acquired CR status on the same date as their parent. They can be included in their parent's I-751 petition even if they have turned 21 and no longer fit the definition of "child" under the INA.
Q: May I travel outside of the United States while my I-751 is pending and my alien registration card has expired?
A: Yes, while USCIS is processing either a joint petition or a waiver, the alien can travel abroad even if the conditional resident green card has expired. Once USCIS receives the form I-751 a receipt will be issued, extending the expired card for one year. The receipt serves as proof of an alien’s continued lawful status in the United States. A conditional permanent resident can use this filing receipt and the expired conditional resident green card to reenter the United States following a trip abroad. It is important to be aware of the expiration date on the receipt and to reenter the United States prior to that date.
Q: Will I be interviewed on the joint I-751 petition or waiver?
A: According to 8 CFR 216.4(b) (1), USCIS has the discretion to waive the interview for the I-751 joint or waiver application. If satisfied that the marriage was entered into in good faith and not for the purpose of evading the immigration laws, USCIS may approve the petition without an interview. If a waiver application is filed, it is more likely that an interview will be scheduled. If the USCIS Service Center decides to require an interview, it will forward the file to the local district office.
Q: What will happen if I fail to appear for my interview?
A: If you fail to appear for an interview in connection with a waiver, the petition will be denied, conditional residence status will terminate and USCIS can institute removal proceedings. You should receive written notification from USCIS detailing the specific reasons for termination of status.
Q: What if I am placed in removal proceedings because I could not file a waiver before the conditional green card expired?
A: A consultation with an experienced immigration specialist is strongly advised. Acceptance of an untimely-filed petition is discretionary. An alien that is unable to file prior to the expiry date on his/her conditional green card should provide an explanation for the untimely submission with form I-751. In the event that an alien is placed in removal proceedings, a review of the denial can be requested before the immigration judge at the NTA hearing.
Q: What if my spouse is unable or unwilling to file the I-751 joint petition?
A: If you cannot file because your marriage has ended in divorce, annulment or death of your petitioning spouse, or your spouse refuses to join in the filing of the petition, you may apply for a waiver of the requirement to file the joint petition. The waiver is filed with form I-751. To qualify for the waiver, you must establish that one of the following circumstances exists:
--o Your spouse has died;
--o Your marriage was entered into in good faith but ended by divorce or annulment;
--o Your marriage was entered into in good faith but your spouse subjected you to battery or extreme cruelty; or
--o Termination of your status would cause you extreme hardship.
Q: If I understand the waiver correctly, must the alien show that the marriage was entered into in good faith?
A: In cases where the alien is filing a waiver form I-751 on the basis of a divorce or annulment, or in the case of abuse, yes. There is one ground for a waiver of the joint filing requirement that does not require the alien to demonstrate that the marriage was in good faith.
... continue to Part E.