Under the Immigration Marriage Fraud Amendments Act of 1986 (IMFA), immigrants who obtain permanent residence through marriage but who are married for less than two years at the time permanent residence is granted are conferred conditional permanent residence. While the green card holder enjoys all the privileges that are incident to permanent residence, the permanent residence will expire within two years. In order to obtain the immigrant’s permanent green card, the couple is normally required to file Form I-751, or Petition to Remove Conditions on Residence. The Petition is a Joint Petition signed by both the U.S. citizen/ LPR spouse and conditional resident, and must be filed at least 90 days prior to the expiration of the two-year green card.
Unfortunately, it is common for couples to get divorced during the two-year conditional period. While it is possible for the conditional resident to continue living in the U.S. after his or her two years are up and still obtain his/her permanent green card, he/she will be required to follow a much more complicated procedure. The applicant will essentially have to file a self-petition, or waiver of the joint filing.
The Waiver Process: Marriage Entered Into Good Faith But Terminated By Divorce
If you have already obtained a final order of divorce, you may file the I-751 at any time (you don’t necessarily have to wait ninety days prior to the expiration of your green card). In Form I-751, the applicant must specifically a request a waiver of the joint filing requirement based on a good-faith marriage terminated by divorce. The point of this waiver is to request that USCIS waive the joint filing requirement because while you and your spouse are no longer legally married, the marriage was nevertheless genuine and entered into good faith. That is, it was not an arranged marriage contrived to help you “get your papers.” You are claiming, in other words, that you and your spouse intended on living the rest of your lives together when you married, but unfortunately, due to whatever differences or problems led to the dissolution of he marriage, you can longer stay together.
The waiver, of course, involves more than just filling out the form. You will need to submit evidence in support of and to demonstrate your claim of a “good-faith” marriage. It is always advisable to consult with an attorney to determine what type of documentation may be helpful and probative, as the type of evidence you may need to submit can vary, depending on the circumstances behind the breakdown of the marriage and subsequent divorce. For example, if you and your ex-spouse had a simple court marriage with little evidence of any co-mingled assets or liabilities, submission of the divorce order by itself without any additional evidence will likely trigger a Request for More Information or worse, a denial. Some items which you may want to consider include a personal statement regarding your marriage, affidavits from friends or family members who can attest to your relationship as a married couple, photographs, and any joint documents established during the marriage, whether it be in the form of taxes, insurance policies, bank statements, or leases.
Once you have filed the petition, you will receive an I-797 Notice of Action which will serve as your receipt notice and which will indicate that your permanent residence has been extended for one year, during which you may continue living in the U.S. while your application is pending review. At some point, your case will most likely be scheduled for an interview at the local district office where you will have to prove your case to immigration officer.
It is important to note that the good faith marriage dissolved by divorce is not the only waiver available. There are two other waivers that an applicant may qualify under. They are the abuse and hardship waivers, respectively, which will be discussed in future posts. An applicant need not check only one ground, if one or more grounds conceivably apply to his/her situation. However, evidence must be produced in support of whichever waiver grounds are being chosen.
Assuming that an Information Services Officer (ISO) is satisfied with the merits of the waiver application during the interview, the case will approved and the applicant will receive permanent residence without conditions.
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