Conditional Permanent Residents with Marital Problems - Part 1

The USCIS recently issued a memorandum providing more options for the filing of the required I-751 form requesting removal of the conditions on residency. Conditional permanent resident status is given to individuals who receive permanent residence (green card) status via a recent marriage to a U.S. citizen. The change in procedures involves situations in which a divorce is in process or in which a divorce is finalized after the I-751 filing. The change addresses some long-standing problems and provides more options for conditional permanent residents who are in troubled marriages.

If a marriage has been less than two years in duration at the time permanent residence is granted, the status of the foreign national spouse then is "conditional." The condition is that it expires within two years, unless the Form I-751 is filed, at the appropriate time, to request that the conditions be removed. If the I-751 is granted, the foreign national spouse becomes a permanent resident without any conditions.

The conditional status is an anti-fraud measure and is necessary to provide updated proof of a bona fide marriage in support of the I-751 form. This form can be filed jointly, with both husband and wife signing. Alternatively, it is possible to request a waiver of the joint filing requirement, if the marriage was entered into in good faith, but was subsequently terminated. It is also possible to obtain a waiver if the marriage was entered into in good faith, but there was abuse and, separately, it is possible to request a waiver if removal of the foreign national spouse would result in extreme hardship.

For many years, to satisfy conditions for filing the I-751, it was necessary to either file jointly OR to qualify for a waiver request at the time of filing. This created a serious problem for individuals whose marriages were troubled. If the U.S. citizen spouse was unwilling to sign the I-751, but the couple was still legally married, there often was no way to properly file the I-751 when needed. Absent the joint filing, it was necessary to have a basis for a waiver request. As explained above, waivers require marriage termination (divorce), abuse, or extreme hardship.

This is a common problem since the I-751 must be filed before the two years of conditional residency expires. Generally, it can be filed up to 90 days in advance of that point. If a marriage encounters problems, it is often not possible to divorce without the couple first being separated for an extended period. (Legal requirements for separation prior to being granted a divorce vary from state to state, with common timeframes ranging from six months to two years.)

Couples sometimes separate and go through a period of months when they decide whether they can resolve their problems, or if divorce is to be pursued. Thus, many individuals find themselves in marital limbo when the I-751 is due to be filed. In the past, unless the couple was still amicable, so that the U.S. citizen spouse would sign the form, the foreign national could not file, and then the conditional status would terminate.


http://www.greencardfamily.com/news/news2009/news2009_1112.htm



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