Navigating Good and Bad Marriages: Mechanics of Conditional Residency, Joint Filing and Waivers
There are several legal ways to become a permanent resident (Green Card holder) in the U.S. This post briefly explains one of the statutorily codified ways, and some of the available waivers to the joint-filing requirement.
For immigration purposes, the place-of-celebration rule governs. A marriage is, therefore, valid under the law of a jurisdiction in which it is performed. The law imposes a burden on an applicant to establish that s/he enters into a valid marriage with a U.S. citizen spouse, and a marriage certificate is sufficient to establish the validity of the marriage.
At the TIME of the marriage, the parties must intend to establish a life together. The marriage is further consummated by cohabitation between the parties after the ceremony. A bona fide marriage — between a noncitizen and a U.S. citizen or a Green Card holder — can then be used to obtain certain immigration benefits.
After the U.S. citizen (or a Green Card holder) files a petition for the noncitizen spouse — and pursuant to the Immigration and Nationality Act (INA) — a noncitizen will acquire CONDITIONAL residence and be required to later remove this condition. And the clock starts ticking, giving the CONDITIONAL resident two options:
Option No.1: To remove the conditions — which must be initiated within a 90-day period prior to the expiration of the second-year anniversary of the grant of conditional residence — the beneficiary must file a JOINT PETITION with the U.S. citizen spouse.
Option No. 2: To remove the conditions — which must be initiated within a 90-day period prior to the expiration of the second-year anniversary of the grant of conditional residence — the beneficiary must file for a waiver of the joint filing requirement.
For the first option, you can submit some evidence of a good-faith marriage, including, but not limited to, cohabitation, jointly owned properties, and affidavits of people with knowledge of the marriage.
However, some marriages hit the rock. Like everything in life, there are uncertainties. People change for the worst. A noncitizen is not expected to stay in an abusive marriage because of immigration benefits (the Violence Against Women Act of 1994, which is now gender neutral, offers certain immigration reliefs for noncitizens).
If the joint filing is not feasible, then here are the legal options for WAIVERS of the joint-filing requirements, pursuant to INA §216(c)(4), 8 CFR §216.5:
1. The death of the U.S. spouse — 8 CFR §216.4(a)(1); Matter of Rose, 25 I&N Dec. 181, 183 (BIA 2010).
2. The qualifying marriage was entered into in good faith by the noncitizen spouse, but the qualifying marriage has been terminated through divorce or annulment — INA §216(c)(4)(B).
3. The marriage was entered into in good faith by the noncitizen spouse, but the noncitizen spouse was abused or subjected to extreme cruelty during the marriage — INA §216(c)(4)(C).
4. The noncitizen is a child whose parent entered the marriage in good faith, and the noncitizen child was battered or subject to extremely cruelty by the U.S. citizen or lawful permanent resident (LPR) spouse — INA §216(c)(4)(C).
5. Extreme hardship would result if the noncitizen spouse were to be removed — INA §216(c)(4)(A).
Failure to initiate the removal can result in the termination of lawful status and initiation of removal proceedings, so don't wait until adverse actions have been taken on your matter.
Whether you are seeking Option No.1 or Option No. 2, or/and you have other questions regarding this post, you can schedule an appointment with the attorney in charge of The Law Office of Akintunde F Adeyemo, PLLC:
Akintunde F. Adeyemo, Esq.
Attorney, Counselor & Solicitor
734-318-7053 (Call, Text, Including WhatsApp)
Email address: info@akinalaw.com
Website: www.akinalaw.com
The information in this article is for general information purposes only. Nothing in this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
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