Written by attorney Moses Apsan

A Marriage Breaks Down Before the Permanent Green Card is Granted. What are you to do?

Maria called me the other day and told me that she and her husband had been fighting. He suspects that she’s been having an affair with his best friend Ramon. He’s talking about moving out and divorce. Maria swears there is no truth to Ramon’s suspicions, and that he is just jealous. Why this call? He conditional (temporary) Green Card is going to expire in a few months. Now Ramon is angry and refuses to sign the immigration form (I-751) that would convert her temporary Green Card to a Permanent one. What is there to do?

The Form I-751 is the "Petition to Remove the Conditions on Residence." It is used both as the petition for the immigrant and the U.S. citizen (or lawful permanent resident spouse) to petition the INS for the change from a temporary to a permanent Green Card and for a waiver (pardon) of the requirement that the husband and wife file a joint petition. The law that created this requirement came into being through the November 10, 1986 enactment of the Alien Marriage Fraud Act. (AMFA). Conditional residency is given for two years, if the parties were married for less than two years on the day of being granted the Green Card. The law requires that the couple submit a joint petition to remove the conditional basis of the status, within the last 90 days of the temporary period. Failure to do so results in the loss of the Green Card. For jointly filed petitions, the form I-751 must be signed by both parties, along with documents establishing that the marriage was entered into in "good faith" and not for the purpose of evading the immigration laws. This evidence can include birth certificates of the children born to the marriage, financial record showing joint ownership of assets, Tax returns, bank statements, credit cards, medical and life insurance, and affidavits of "at least two people." The filing receipt of the I-751 is actually an extension of the residence card, and is valid for one year.

But in Maria’s case her husband is refusing to sign the form. What can be done? Maria can apply for one of the three waivers provided for in the statute. These are the 1)"good faith" and no longer married waiver 2) the good faith and battered waiver and 3) the extreme hardship waiver. If the marriage has ended through divorce or annulment, she could file a waiver on an I-751 form, which provides that her conditional residence was based on good faith marriage to an U. S. citizen or permanent resident. In such case, she should have sufficient evidence to establish that the marriage was "entered" into in good faith. It does not matter who started the divorce procedure. If she is still married, Maria may possibly file for the battered spouse waiver" asserting that she entered the marriage in good faith, but she has been battered or subjected to extreme mental cruelty by her U.S. citizen or lawful permanent resident spouse. To succeed in a “Battered Spouse" petition, Maria would have to document both the good faith of the marriage, and proof of the abuse. If she is trying to establish extreme mental cruelty, she will need to have a signed letter by a licensed clinical social worker, psychologist or psychiatrist. She would need to include an evaluation of this "licensed professional", as well as her "full name, professional address, and license number." The last one, the extreme hardship waiver provides that the Attorney General "may remove the conditional basis of the permanent residence for an alien" who does not file the joint petition if "extreme hardship would result if such alien is removed." Unlike other extreme hardship provisions in the INA, there is no requirement that a particular person suffer the extreme hardship. However, the law is very strict and the USCIS would approve only in those cases where the hardship is extreme.

A conditional resident can file more than one I-751 e.g. a joint I-751 and later an I-751 waiver. Because more than one waiver may be possible given the facts of a particular case, an applicant may file successive I-751 waiver applications listing the different waiver categories. Joint I-751s, and I-751 waivers are filed with the Service center having jurisdiction over the conditional resident’s place of residence. The joint petitions can be approved without interview, and often are, if properly supporting by documentation of the good faith of the marriage. The waiver applicants are always interviewed. It should be noted that though the statue requires the I-751 joint petition to be filed within the last ninety days of the period of conditional residence. A late filed joint I-751 "may be considered… but only if the alien establishes to the satisfaction good cause and extenuating circumstances," "for failure to file" the joint petition timely. Therefore, if Ramon changes his mind and does sign the I-751 after Maria’s status has expired, a joint I-751 can be filed, with an explanation as to why it was filed late. Also, a waiver application can be filed at any time, either before or after the status expires.

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