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My conditional residence is ending and so is my marriage (or it’s already over) – what do I do?

A couple of weeks ago, a woman came into my office whose conditional residence had expired eight years before. She had been in a bona fide (good faith) marriage and gotten lawful conditional residence through her husband. She had let her residence expire, however, because her marriage collapsed shortly before the two year anniversary of when it was granted, during which time she was to file a joint petition to remove the conditions on her residence. One day, her husband informed her that he had gotten back together with an ex-girlfriend. In addition to dealing with this blow to her marriage, she had to deal with the unknown consequences to her immigration status. Although she consulted with her attorney, she did not inform her that she had separated from her husband, out of fear of getting bad news. She had heard over and over again from her attorney and friends that she needed to file a joint petition with her husband to remove the conditions on residence or her residence would be terminated. To her, that meant that she would have to prove that her marriage was bona fide and ongoing, or she would fall out of lawful immigration status and be vulnerable to removal. I informed her that she could have filed a waiver of the joint petition based on a good faith marriage to remove the conditions on her residence. She did not need to live in the shadows for the last eight years. If only she had told the truth to her attorney! She could already be a U.S. citizen. Consulting with your attorney is like visiting your doctor, if you are truthful, he or she can know how to help you. If not, you may be making the problem worse.

A Conditional Permanent Resident (CPR) is one who has obtained his or her status through marriage to a United States Citizen (USC) spouse or to a Legal Permanent Resident (LPR) spouse prior to their second wedding anniversary. [1] Section (“§") 216 of the Immigration and Nationality Act (INA) imposes a two-year period of conditional residency, and the CPR and his or her petitioning spouse (unless deceased) must file Form I-751 to remove the set conditions. [2] Normally, the CPR and the USC spouse jointly file an I-751 petition within the 90-day window prior to the second anniversary of the grant of conditional residence. [3] However, INA §216(c)(4) and 8 C.F.R. § 216.5 permit the CPR to request a waiver of the joint filing requirement if the CPR establishes that:

  • Removal from the United States would result in extreme hardship;
  • The CPR entered the marriage in good faith, but the marriage was terminated (other than through death); or
  • The CPR entered the marriage in good faith, but the petitioning spouse or parent battered the CPR spouse or child. [4]

When and how to file this waiver depends on whether or not the CPR is merely separated/filing for divorce, or is already divorced. The procedure and guidelines have changed over the years [5], and will likely change again (which is why I am not publishing those procedures here). As such, always seek the advice of an attorney well before the date your conditional residence will expire (or as soon as possible if it already has), or if there is any change in your marital status. There is no time limit for filing these waivers [6], and you may file under as many categories as you qualify for.

Fortunately, with the particular facts of the aforementioned woman’s case, there is hope. For example, she had never been placed in removal proceedings, which is what normally happens if your conditional residence is terminated. If something like this is happening or has happened to you, at the very least, please consult with an attorney prior to filing any paperwork with the government. If you cannot afford an attorney, there may be free community legal services available to you. Please be aware that there are options for you if your marriage to a USC or LPR spouse has ended.

The information you obtain from this legal guide is not, nor is it intended to be, individualized legal advice, nor does it create an attorney-client relationship. You should consult an attorney for individual advice regarding your own situation.

[1] Memo, Donald Neufeld, Acting Associate Director, "I-751 Filed Prior to Termination of Marriage," April 3, 2009, posted on AILA InfoNet at Document No. 09072166 (posted on July 21, 2009) (“Neufeld Memo").

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] See Immigration and naturalization Service memorandum, “Filing a Waiver of the Joint Filing Requirements Prior to Final Termination of the Marriage," dated April 10, 2003.

[6] 8 C.F.R. §216.5(a)(2), “A conditional resident who is in exclusion, deportation, or removal proceedings may apply for the waiver only until such time as there is a final order of exclusion, deportation or removal.."

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