Immigration Law Associates
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New Opportunities and Challenges in Obtaining Permanent Residence Through a U.S. Citizen Spouse When the Marriage Has Broken Down

When a foreign national marries a U.S. citizen, there are a number of steps the couple normally takes to secure permanent residence for the foreign spouse. If both spouses reside in the United States, the non-citizen may be eligible to file, concurrently with the U.S. citizen's immigrant petition, an application for adjustment of status. After initial review of the submitted documentation, the couple is asked to come in together for an interview, at which time they must show sufficient documentation of a bona fide marriage, i.e. a marriage that was not entered into simply for the purpose of securing permanent residence for the foreign spouse. If the couple is successful in establishing a bona fide marriage, the foreign national will be granted either conditional or unconditional permanent residence.

Unconditional permanent residence is granted only if the couple has been married for more than two years at the time of the immigrant visa interview. If the couple has been married less than two years, the foreign national will be granted conditional residence valid for two years only, at the end of which they are required to jointly file Form I-751, "Petition to Remove Conditions on the Residence". If the couple does not timely file a joint I-751 petition, the foreign spouse's legal status will be terminated and deportation proceedings may be initiated.

How does divorce or separation affect the foreign spouse's ability to obtain and/or keep her U.S. permanent residence? It depends largely on when in the process the separation or divorce occurs.

If the couple separates before the initial adjustment of status interview, even if they are on good terms, there is little chance of a successful adjustment case unless they can show evidence of ongoing efforts to reconcile, such as marriage counseling. The situation is even more critical if the divorce becomes final prior to the adjustment interview because the relevant regulations require automatic revocation of the immigrant petition either upon written notice of withdrawal filed by the petitioner or upon the legal termination of the marriage. In this instance the foreign national should consult with an attorney to see if there are any other immigrant visa options for obtaining permanent residence, such as through another family member or employment.

There is also an option for self-petitioning in cases where the marriage was entered into in good faith and the alien was battered or was the subject of extreme cruelty by the US citizen spouse during the marriage. While this is not common, extreme cruelty or battery may be grounds to adjust status. The self-petition does not require that the couple be divorced.

If the separation or divorce occurs after the foreign national has already been issued conditional permanent residence (CPR), the probability of retaining permanent residence significantly increases. If the couple separates during the two year period when the foreign spouse holds conditional status but remains on friendly terms, they can still choose to file a joint petition to remove the conditions. This requires that both spouses sign the I-751 petition attesting that the marriage was not entered into for the purpose of procuring an immigration benefit. The petition should be accompanied by clear and convincing evidence of a bona fide marriage, such as proof of joint assets, liabilities, property ownership, etc.

Where a joint filing is not feasible, the beneficiary could request a waiver of the requirement that both parties sign the petition to remove the conditions. To obtain this waiver, the foreign spouse must prove one of the following: termination of status and removal from the United States would cause extreme hardship to the foreign spouse; the marriage was entered into in good faith but terminated in divorce; or the foreign spouse was battered or was the subject of extreme cruelty by the U.S. citizen spouse during the marriage.

Until recently, USCIS held that separated, but not yet divorced, conditional residents were ineligible to file I-751 waivers based on the termination of marriage ground, which put conditional residents engaged in lengthy divorce proceedings at risk of being placed in removal proceedings. On April 3, 2009, USCIS somewhat remedied the situation by issuing a memorandum permitting the filing of either a joint petition or a waiver post separation but prior to divorce. Most notably, the memorandum stated that USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings. However, there are different filing procedures that will be applied to each situation, and, for waiver cases, the divorce must nevertheless be finalized close to 87 days after filing the waiver.

In cases where the couple agrees to file a joint petition despite separation, the memorandum states that the petitioners will receive a request for evidence asking for the final divorce decree. If the decree becomes available prior to the deadline for responding, the petitioners must then request that their case be converted to a waiver case. If petitioners are not yet divorced when the response is due, the case will be evaluated on the strength of the bona fides of the marriage.

In cases where the U.S. citizen spouse does not agree to sign a joint petition because of separation or pending divorce, the foreign national must request a waiver of the joint filing. Foreign nationals who file a waiver post separation but prior to the final divorce will automatically receive a request for evidence requiring that that the divorce be finalized in 87 days. If the divorce is not finalized in time to respond to the request for evidence, the USCIS will issue a notice revoking the conditional status and the foreign spouse may be placed in removal proceedings. Therefore, only those conditional permanent residents who are poised to quickly submit proof of termination if their marriage after filing the I-751 petition should utilize this new policy.

Because of the severe consequences of not following the proper filing procedures, a foreign national spouse whose marriage has broken down should always consult with an immigration attorney to assess their situation and to see what options are available to them.

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