Published April 20, 2016
Usually, foreign nationals obtaining immigration benefits by way of a marriage to a U.S. citizen are only initially granted resident status on a 2 year “conditional” basis. That is because at the time they are granted their immigrant visa at a consulate abroad, or “adjusting” their status in the U.S., the marriage that is the basis of the petition is less than 2 years old. On the other hand, if a marriage is more than 2 years old at the time of such final processing at a consulate overseas, or at a CIS office in the U.S., the alien will be conferred unconditional permanent resident status – with a 10 year Alien Registration Card, or “green card”, being issued. But even if the marriage is 1 year and 11 months old at the time of final processing, approval for only a 2 year resident status will be issued. And for the duration of this period, the alien is known as a conditional permanent resident.
Toward the end of their conditional status, and within 90 days prior to expiration, the foreign national must take measures to extend their status by filing to “remove” the conditional basis of their resident status. Usually, a filing to remove the conditional basis of an individual’s resident status is accomplished by way of a “jointly filed” I-751 petition, wherein BOTH the foreign national conditional resident and their U.S. citizen spouse sign the I-751 form confirming that they continue to reside together as husband and wife. Supporting documentation reflecting the couple’s shared residence during the course of the 2 year conditional period is also required, such as copies of jointly filed tax returns, evidence of jointly owned real estate or personal property, joint leases, joint credit account and bank statements, and/or photos chronicling the relationship. The more supporting documentation that is submitted, the better the chances the filing will be approved without the need for the parties to appear for an interview.
What if the marriage fizzles during the course of the 2 year conditional resident period and a jointly filed I-751 is not possible? The foreign national is not out of luck, as an I-751 waiver filing is an option, where the cooperation of the U.S. citizen spouse is not required. Such a scenario is not terribly uncommon and removing the conditional resident basis continues to remain a viable avenue as long as the conditional resident can provide significant documentation reflecting a shared residence with their U.S. citizen spouse, or when applicable, that they had fallen victim to their U.S. citizen spouse’s physical and/or extreme mental abuse. A third waiver basis, although less popular and viable, rests on proving that the denial of the waiver petition will cause the foreign national and/or their U.S. family to experience “extreme hardship”. Importantly, nothing in the governing statute prohibits applicants from filing the I-751 waiver petition based on multiple bases.
Due to the contentious nature of most failed marriages and the fact “shared residence” documentation can be hard to obtain in such cases, I-751 waiver filing often rely heavily on affidavits from the conditional resident as well as from 3rd party witnesses, including marriage counselors or clergy. For jointly filed petitions that are well documented, a CIS regional service center, such as the California Service Center for applicants in Illinois, will generally issue their approval within 1 year. For jointly filed petitions that are not well documented, and in the case of all I-751 waiver filings, the foreign national will be scheduled for an interview at a local CIS office within approximately 2 years from the date of filing.
Conditional residents who receive denials on their I-751 filing, whether jointly filed or as a waiver filing, will have an opportunity to have their cases reviewed by an Immigration Court in removal proceedings. And sometimes, those with jointly filed I-751 that are eventually denied because of a post filing marital breakup, may end up having to re-file their case as a waiver filing since the marriage at issue can no longer serve as the basis of a joint I-751 filing. Importantly, throughout the time a I-751 filing (joint or waiver) remains pending, the conditional resident is eligible to obtain a stamp placed in their unexpired passport confirming their lawful, although pending status, and their right to live and work in the U.S. and even travel internationally. The same holds true even if the conditional resident’s filing is denied and is awaiting final Immigration Court review.
PUBLISHED April 20, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois