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Removal of Conditions on Residency – What Every Immigrant Should Know

What is Conditional Residency?

If a traditional immediate relative petition is successful, it will result in permanent residence for the foreign spouse. However if the couple has been married for less than two years at the time that the case is approved, the residence will be granted for two years and deemed “conditional”. In order to remove the conditional basis of the status, a joint petition or a waiver must be filed by the spouses.

How can the Conditions be Removed?

Joint Petition:

If, after two years of being granted conditional residency, the couple is still married, the process to remove the conditions must be done through a joint petition filed and signed by both spouses. The timeframe for filing this petition is 90 days before the second anniversary of the date that the foreign spouse became a resident. The petition must be accompanied by sufficient evidence that demonstrates the marriage was entered in good faith and is still a bona fide marital relationship.

Some examples of such evidence includes: Proof of joint ownership of property, comingling of finances, birth certificates of children, photos of the couple and their families taken during the marriage, declarations of people who know about the marriage and the couple. Further documents that can be used as proof include tax forms, bank statements, insurance policies and bills in both names, in addition to any other documentation that proves that the couple is in a good faith and bona fide marital relationship.

After reviewing the application, if the United States Citizenship and Immigration Services “USCIS” determines that the qualifying marriage was entered into in good faith, it will approve the joint petition, which will remove the conditional status and grant the permanent residency to the foreign spouse.

Waiver of Joint Filing Requirement:

What happens if within those two years of conditional residency your marriage starts to fall apart? With divorce rates in the U.S. consistently over around 50%, the fact of the matter is that not all marriages work out as intended. For these cases, immigration law has carved out Section 216(c)(4) of the Immigration and Nationality Act (INA), which permits a waiver to be filed where an immigrant cannot file a joint petition to remove the conditional residency with their U.S citizen spouse.There are three scenarios where the waiver can be filed 

  1. Extreme Hardship Waiver: The extreme hardship waiver can be filed for an immigrant who will suffer extreme hardship if they are not allowed to remain in the United States. This hardship must have developed during the conditional status period and not existed prior to then. Some common examples of hardship are: medical conditions, financial difficulties and the separation of family members. In order to file the waiver the couple does not need to be divorced, it can be filed while the couple is separated. 
  2. Extreme Cruelty Waiver: The extreme cruelty waiver can be filed for an immigrant who was the victim of battery or extreme cruelty. Extreme cruelty can consist of physical violence, psychological and emotional abuse. Federal regulations also include “acts that in and of themselves, may not initially appear violent but are a part of an overall pattern of violence.” If you believe you are a victim of extreme cruelty, it is important to seek immigration help as well as assistance for your personal safety.
  3. Good Faith Marriage Waiver: This waiver is for couples that entered into the marriage in good faith and now find themselves in the midst of a divorce due to unforeseen circumstances. This waiver is a bit different than the other two. Unlike the other two waivers, the marriage must be fully terminated in order to be able to receive approval of the good faith marriage waiver. This means that the waiver cannot be considered by USCIS until the divorce or the annulment is final. Because divorce in some states takes several months to process, USCIS recently issued a policy memorandum which confirms that if a divorce is pending, adjudicators will request additional evidence in order to give the applicant 87 days to provide the official divorce decree or proof of annulment.Denial of an application to remove conditions normally results in the placement of the applicant into removal proceedings.

If you believe you are eligible to remove your conditions, due to the complexity and serious consequences, be sure to speak with an experienced attorney in preparing your case.

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