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When "I Do" Becomes "I Don't" and Immigration Consequences for U.S. Conditional Permanent Residents

When "I Do" Becomes "I Don't" and Immigration Consequences for U.S. Conditional Permanent Residents

Posted by: ScottMond Law Firm
October 27, 2010
Topic: Family Law & Immigration

Marriage between U.S. Citizens and Lawful Permanent Residents to Nationals of other countries has become the norm rather than the exception. U.S. Immigration laws have strict guidelines and requirements for couples to demonstrate that their marriage under 2 years is "bona fide". In order to meet this mandate, U.S. Citizenship and Immigration Services ("USCIS") will only issue a 2 year green card to individuals married under 2 years at the time the I-130 petition and concurrent I-485 application is filed by U.S. citizen or Legal Permanent Resident("LPR") status on behalf of his or her foreign national spouse.

It has been said jokingly that a true and bona fide marriage can only be determined if in fact there is serious conflict. In other words, marriages that are real where two people who love each other unite from different backgrounds will inevitably experience conflict within their first two years. USCIS's view on marital conflict that may even result in separation is often misunderstood.

The purpose of this short article is to provide a proper perspective on marriage problems and how USCIS views a separation within the first 2 years of marriage; and the immigration consequences to the foreign national spouse who is a Conditional Permanent Resident ("CPR"). This article also provides an overview of options for when a waiver of the I-751 (application to remove conditions from Green Card) may be waived in the event a divorce occurs. It is very important to understand that a break down of a marriage, or marriage difficulty does not mean that the marriage is not bona fide. USCIS fully acknowledges this fact.

USCIS stated in a recent memo that unless a CPR is able to establish eligibility for a waiver, he or she must file the I-751 jointly with his or her U.S. citizen or Lawful Permanent Resident spouse. INA §216(c)(3)(A) and (B) and 8 CFR §206.4(c) provide that USCIS may approve the I-751 and remove the CPR's condition if

  • The CPR and petitioning spouse (unless deceased) appear for an interview; and
  • USCIS determines the following facts are true:
    • The marriage was legal where it took place;
    • The marriage has not been terminated;
    • The marriage was not entered into for the purpose of procuring permanent resident status; and
    • No fee (other than to an attorney) was paid for the filing of underlying I-130 or I-129F

The statute and regulations require approval of the I-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings. However, legal separation or initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.

If a local USCIS officer encounters an I-751 petition jointly filed by co-petitioner who are still married but are legally separated and/or are in pending divorce or annulment proceedings, the ISO issues the CPR a Request for Evidence with an 87-day response period. In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree or annulment along with a request stating he or she would like to have the joint filing petition treated as a waiver petition. This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refiling.

If the CPR provides evidence that the proceedings have been finalized, the Immigration Officer amends the I-751 petition to indicate that the CPR is eligible for a waiver of the joint filing requirement based on termination of marriage and adjudicates the petition on the merits in accordance with established procedure. In so doing, the ISO determines whether there is sufficient evidence the CPR entered the marriage in good faith, or requires an in person interview.

If the CPR fails to respond to the RFE, or the CPR's response does not satisfactorily establish that the marriage has been terminated, the Immigration officer assess evidence of the bona fides of the marriage to determine whether the petition should be approved, denied, or relocated for an in-person interview. Again, the interview is based on the four factors being met as enumerated above.

In many cases the divorce will take place during the response period to the RFE, which affords the CPR the opportunity to establish eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment. If the CPR does not respond to the RFE, or if the CPR's response does not establish eligibility for the waiver, the ISO denies the notice and refers the case to the Immigration Court to initiate removal proceedings.

If a case is referred to the Executive Office of Immigration Review (EOIR) for an Immigration Judge to initiate removal proceeding all is not lost. A CPR may successfully establish eligibility for the waiver before the judge with the assistance of legal counsel.

For further information you may contact our office at [email protected] or 703.261.6881. Calls and Emails are returned from 8am to 8pm EST.

ScottMond Law Firm

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