Removal of Conditions After Divorce (Waiver of the Joint Filing Requirement)
When an immigrant obtains lawful permanent resident (“LPR”) status based on a marriage that is less than two years old, their LPR status is conditional for two years. This conditional status is intended to prevent fraudulent marriages. As the two-year conditional period is ending, the couple must jointly petition for the conditional status to be removed.
This article, written by Seattle immigration lawyer Brandon Gillin, describes conditional LPR status, the removal of conditions process, removal of conditions after divorce, and other possible waivers to excuse the joint filing requirement.
Conditions on Residence
Congress enacted that Immigration Marriage Fraud Amendments of 1986 (“IMFA”) in part to address concerns about individuals obtaining LPR status through illegitimate or sham marriages. The IMFA requires immigration officials to determine whether a couple’s intent at the time of the marriage was fraudulent.
The start date of two-year time period differs depending on how the non-citizen spouse received their LPR status. If they went through consular processing and were admitted to the United States with an immigrant visa, their conditional residence began on the date of admission. If they adjusted their status, their conditional residence began on the date they received final approval from USCIS.
While an immigrant’s LPR status is conditional, they may live and work in the United States as an LPR.
How to Remove Conditions on Residence
In order to remove the non-citizen spouse’s conditional status, both the U.S. citizen spouse and the non-citizen spouse must jointly petition. The petition is known as Form I-751, Petition to Remove Conditions on Residence. Conditional LPR children may be included in the same petition so long as they received their status at the same time or within 90 days of the non-citizen spouse.
The petition must be filed during the 90-day period immediately before the conditional residence expires (the conditional residence expires on the two-year anniversary of receiving conditional LPR status). If Form I-751 is timely filed, the non-citizen spouse’s conditional permanent resident status is extended for up to eighteen months while the petition is reviewed.
If the 90-day deadline is missed, U.S. Citizenship and Immigration Services (“USCIS”) may still consider the petition. However, the non-citizen spouse must establish good cause and extenuating circumstances for their failure to file on time. Acceptable extenuating circumstances may include death of a family member or a long-term illness.
The Immigration and Nationality Act (“INA”) contains specific provisions regarding the removal of conditions. INA § 216(d) explains the requirements needed to satisfy immigration officials that the marriage was not fraudulently entered in order to obtain immigration benefits.
First, the qualifying marriage must:
- Have been lawful in the place where the marriage occurred;
- Have not been judicially annulled or otherwise ended (the death of the spouse does not count); and
- Have been entered into in good faith (meaning that at the time of the marriage, the parties did not enter the marriage so that the non-citizen spouse could receive LPR status).
If the U.S. citizen spouse died during the two-year conditional period, the couple understandably does not have to jointly file Form I-751. Instead, the non-citizen spouse must provide proof of the other spouse’s death and file Form I-751 on his or her own.
Second, the couple must show that no consideration (a financial payment or gift) was given for the marriage. The couple should submit evidence such as:
- Bank accounts showing commingled finances
- Birth certificates of the couple’s children born during the marriage
- Lease showing joint residence
- Proof of joint property ownership
- Affidavits of third parties
Third, the couple should also provide a statement of additional information. This information includes details about the couple’s actual residences and employment since the day the non-citizen spouse obtained conditional LPR status based on the marriage.
USCIS may also request an interview in order to ensure the authenticity of the marriage.
Termination of the LPR Status
USCIS may terminate the non-citizen spouse’s LPR status if either: (1) the couple fails to file a petition or (2) the marriage was determined to be improper.
If USCIS terminates the non-citizen spouse’s LPR status, the noncitizen spouse is placed in removal proceedings. After receiving a Notice to Appear for a hearing from USCIS, the noncitizen spouse may rebut the evidence of their failure to remove the conditions.
If the conditional LPR status was terminated because the non-citizen failed to file the petition, then the burden is on the non-citizen spouse to show that he or she complied with the requirements. If the conditional LPR status was terminated because the marriage was improper, USCIS has the burden of proof.
Three Waivers of the Joint Filing Requirement
Sometimes, immigrants with conditional LPR status may be unable to comply with the removal requirements. This may be because the U.S. citizen spouse is unwilling to help file the petition or because the marriage has since ended. In either of these scenarios, the non-citizen spouse may seek a waiver of the joint filing requirement.
INA § 216(c)(4) describes the three types of available waivers.
- Extreme Hardship––INA § 216(c)(4)(A): A non-citizen spouse may be eligible for a waiver if extreme hardship would result from the non-citizen spouse’s removal. The extreme hardship does not necessarily have to be to the non-citizen spouse; it may apply to a family member or the couple’s child. If the extreme hardship would be inflicted upon the non-citizen spouse, factors such as the non-citizen’s home country’s conditions should be considered. Other factors that may be considered include the non-citizen’s family and community ties in the United States and the financial consequences of the non-citizen’s removal.
- Marriage Terminated––INA § 216(c)(4)(B): If the marriage was entered into with good faith, but the marriage has since formally ended (other than through the death of a spouse), the non-citizen spouse may be eligible for a waiver. However, the non-citizen spouse must not have been at fault for the terminated relationship. In order for this waiver to apply, the couple must be legally divorced or annulled rather than merely separated.
- Suffered Abuse––INA § 216(c)(4)(C): If the marriage was entered into with good faith, but the non-citizen spouse or their child has been battered or has suffered extreme cruelty, the non-citizen spouse may be eligible for a waiver. The non-citizen spouse must not be at fault. There is no need to demonstrate hardship for this waiver to apply. However, the non-citizen must be able to submit an evaluation from a licensed professional detailing the abuse as well as evidence of the abuse, including photos, police reports, and restraining orders.
To obtain a waiver, the non-citizen spouse should request a waiver before, during, or after the 90-day period before their conditional residence expires. Multiple waivers may be requested at the same time.
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Resources on Removal of Conditions After Divorce
We provide the following resources for the prospective employment-based permanent residence applicant.
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— Jeffrey K. Traylor, Attorney at Law