Love, Marriage, Divorce…and Immigration

Feb 23, 2015 | Bona Fide Marriage

As a Miami immigration lawyer handling marriage petitions (Form I-130 applications), I often receive questions about what happens after an applicant has filed Form I-130, and has already received conditional residence.

I covered this in a blog piece last week, but as a reminder, conditional residence is granted if you were married for less than two years at the time of your approval for residency, or if you entered the United States as a K-1 fiancé.

This means: your status as a permanent resident of the United States will expire in two years.

How do I know if I am a Conditional Resident?
To find out if you are a conditional resident, you can first check by looking at the stamp on your passport. If the stamp on your passport says “CR-1”, this would mean that you only received conditional residence. The date below the CR-1 stamp should show when your two years of conditional residency ends.

If you cannot find the stamp on your passport, the other way to find out would be to take a look at your new green card when it arrives in the mail. If the expiration date on your green card is two years from the date that the green card was issued, this means you’re a conditional resident. If the expiration date on your green card is ten years from the date your green card was issued, this means that you are a permanent resident of the United States (note – you will have to renew your green card at the end of ten years).

If you still have questions in regard to your status as a permanent resident, you may want to speak with a Miami immigration lawyer to clarify your immigration status.

Why does the USCIS have a two year conditional residence?
The purpose of the two years of conditional residence is to allow the United States government to ascertain as to whether your marriage is indeed real (bona fide) before you are allowed to stay in the U.S. permanently. If you and your spouse have been married for two years or more, you can file for an I-751 petition to remove the conditions on your permanent residency.

What happens if I get divorced while within the two year period of conditional residence?
If you are within the conditional two year period of permanent residence, and you get divorced while within this two year period, you will lose your immigrant status, and may become deportable. However, you, as the conditional resident, may circumvent this by applying for a waiver of the joint filing requirement of the I-751 petition based on good faith when you entered into the marriage.

If you are in this situation, I would strongly encourage you to consult with a Miami immigration lawyer to discuss your options.

I am in the middle of a divorce, but I do not want to lose my immigration status. What can I do?
If you and your spouse have been married for two years or more, you can file for an I-751 petition to remove the conditions on your permanent residency. Because you have been married for two years or more, you will not need your spouse’s assistance to process the petition.

However, if you and your spouse have been married for less than two years, you can request what is known as a good faith waiver. Normally, Form I-751 for removal of conditions is filed jointly, with your spouse – however the waiver seeks to waive the joint filing requirement.

What do I need to demonstrate for purposes of the waiver?
The waiver will need to demonstrate one or more of the following:

  • divorce after a good-faith marriage
  • abuse or battery by the U.S. spouse in a good-faith marriage, or;
  • extreme hardship to the immigrant if returned to his or her country of origin.

Should you and/or your Miami immigration lawyer file this waiver, you are essentially trying to show that you and your spouse entered into this marriage in good faith, that you were not at fault in failing to meet the requirement of filing the joint petition, and that the marriage was terminated other than by the death of the your spouse.

How else can I show that I entered into the marriage in good faith?
You should certainly consult with your Miami immigration lawyer to ascertain how this can be achieved, however two examples of showing that you entered into the marriage in good faith include the ownership of joint property, or having a child/children together.

If you think would like more information on Form I-751, the marriage petition (Form I-130), or divorcing while still a conditional permanent resident of the United States, please contact Miami immigration attorney The Law Office of Tatiane M. Silva, P.A., Esq. at (305)895-2500 or visit our website at www. mmurraylaw.com .