Conditional Green Cards
If you have been married less than two years when your noncitizen spouse is granted lawful permanent resident status, your spouse will receive permanent resident status on a conditional basis.
What this means is that the noncitizen spouse's green card will only be valid for 2 years, not 10 years. To convert the conditional (2 year) green card into a 10 year green card, the U.S. citizen or legal permanent resident sponsoring spouse and the conditional green card-holding spouse must together to petition to have the condition removed, or else the green card will expire and lawful permanent residency status terminated.
This petition must be filed within the 3 month period before the green card expires.
What is my spouse will not cooperate or help me file the have the condition taken off of my green card?
The point of a condition being placed on lawful permanent residency status is the belief that many marriages are entered into just for the purpose of obtaining a green card, not for love or any other reason. The only way Congress could figure out how to detect potentially fraudulent marriages was to put a two year limit on green cards issued to spouses in marriages that were less than two years old.
This strategy also ensures that the marriages are more likely to be real, i.e., entered into for love or other non-immigration purpose, because the couple have to still prove to CIS that they are still together and living as husband and wife two years after the noncitizen first receives his or her green card, by filing more paperwork with CIS with supporting documentation of the marriage, and potentially interview again in front of a CIS officer, all to have the conditional nature of the green card removed.
If a couple separates or divorces at any time after the green card is first issued, it is unlikely that the originally sponsoring U.S. citizen or LPR spouse will cooperate in helping the noncitizen spouse release the condition on the green card for a number of reasons. If this happens, the noncitizen may be able to apply to have the condition removed from his or her own green card by applying for a waiver. The waiver allows the noncitizen to apply to remove the condition on his or her green card without the assistance of their spouse. There are currently three different ways or grounds to apply for a waiver:
(1) good faith marriage ground (if your divorce is final at the time of filing);
(2) extreme hardship (to the alien if deported to their original country); or
(3) extreme cruelty (proving that the noncitizen alien received physical, emotional, or financial abuse from their spouse)
CIS allows a noncitizen to apply for any number of these grounds on the same petition.
Is an interview required in Waiver Cases?
Waivers are generally more difficult to get approved and many district offices require an interview of the noncitizen spouse for the case to be approved.
In cases filed in Southern California at the California Service Center (which transfers the caes to the LA District CIS Office), our firm has been successful in getting waiver cases approved without an interview (after we have asked CIS to waive the interview) in part because we put the best case possible forward which is usually heavily documented.
Is there an advantage to filing one particular type of waiver vs. another type of waiver?
There are pros and cons with each type of waiver. For example, the good faith marriage waiver requires that your divorce be final before you file. This could create a long wait for you if time is a concern, especially if you are just contemplating divorce and are in a state like California that requires a 6 month waiting period before any filed divorce is final. If your green card has already expired, that may seem like an eternity to wait.
The extreme cruelty waiver can be difficult to document in some cases because you have to prove that you were in a bona fide marriage but you were also being abused. Abuse can be physical, emotional, psychological, or financial or any combination of those. A common problem is that many immigrants do not realize what is happening is actually abusive. If you think you may be in an abusive marriage, we suggest that you review this extreme cruelty list as examples of what can be considered abuse. The benefit of filing an extreme cruelty waiver and getting is approved is that unlike the other two waiver types, you will be eligible for US citizenship 3 years after your original conditional green card was issued, instead of 5 years. So, if US citizenship is important to you (most cases it is especially for people who want to sponsor parents, spouses and children under 21), then this waiver is definetly worth considering.
The extreme hardship waiver can be difficult to obtain depending on the country where the immigrant is from, the age of the immigrant, how long they've been in the US, their employment and economic situation if deported, and other factors. These are generally difficult cases to get approved and must be very well documented.
Feel free to contact us for a free consultation with Attorney Heather to determine which waiver may be best for your situation.
What happens if I don't file the joint petition or the waiver in time (within 90 days of my green card's expiration)?
Your green card will be lost if you fail to file within this period, unless you file a waiver petition. A waiver may be filed even after expiration of a green card and even before the 90 day filing period. Once a CIS receipt notice is received from CIS, you will have proof that your green card is still valid for another year or until the case is decided, whichever comes first. If your case is still not decided within a year, your green card will be extended for another year and will be extended on an annual basis until the case is decided.
Will there be another interview with a CIS officer to decide the case?
If you file a joint petition and depending on the evidence submitted, an interview may not be required.
In the event of an interview, we will not only prepare our clients a few weeks before the interview with what documents will be necessary, but also with what kind of questions could be asked and generally, what to expect at the interview. This is also the key time to discuss any potential issues that either the Attorney or the couple or waiver filer wishes to discuss before the interview. Heather goes with the couple or the individual spouse (if filing a waiver) and sits with them at the actual interview to not only lend support to the application but to answer any legal issues that come up, to provide clarification to the officer and clients where needed, and to lend credibility to the marriage, itself - i.e., that no attorney is going to risk their bar license for a sham marriage.
Will I still be able to apply for citizenship if my joint petition or waiver to remove the condition on my green card is still not decided when I become eligible to apply for U.S. citizenship?
Yes. If you received your green card through marriage and you are still living with your husband or wife 3 years after your green card is initially issued, you will be eligible to apply for U.S. citizenship. Even when your green card is conditional because of the short duration of your marriage, you do not have to wait until the conditional petition is decided until you file for citizenship. Actually filing for U.S. citizenship will speed up the process of CIS deciding the conditional residency issue, as conditional residency will no longer be an issue if a person has already received U.S. citizenship.
Special Exception for Divorced or Separated Filers: If you are applying for a waiver based on the extreme cruelty ground and are still living with your spouse, or divorced or not living with your spouse anymore, then you are still eligible to apply for US citizenship after 3 years in lawful permanent residency status! Usually, conditional residency waivers do not take more than 1 year to decide and thus, it is unlikely that it will interfere at all with your citizenship plans or that you will encounter this issue. However, the same general principles apply if for some reason the decision-making on waivers dramatically slows down over the coming years. Important: This special exception is a new change to the citizenship law, a change many local CIS officers are not aware of or do not understand so always hire an attorney to represent you at least on the day of your interview to make sure your case is not denied!
Will I be able to travel abroad while the joint petition or waiver is pending with CIS, even if my hard copy green card is expired?
To be sure that you will be allowed re-entry into the U.S. upon departure after your green card expires, you should have proof of your continued lawful permanent residency stamped in your passport by CIS after you receive proof of filing of the joint petition or waiver. This temporary stamp will be the evidence necessary for a port of entry CIS official to conclude that you are still a lawful permanent resident and should be allowed re-entry into the U.S.
If you are in the Southern California area, we can get your passport stamp for you so you don't have to go to CIS! Contact us for a free consultation.
What if my joint petition or waiver is denied? Can I appeal?
An appeal of a joint petition denial can only be reviewed by an immigration judge in a removal/deportation hearing (immigration court). However, in certain cases, a person who has been denied a joint waiver may be able to file for a waiver after the denial of the joint petition even if CIS has already officially terminated conditional residency status. This waiver may be filed up until the time the immigrant is placed in a deportation/removal hearing. Warning - This is a more complicated area of immigration law. Always consult an experienced immigration attorney to determine what options, if any, are available to you.
The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.
When Experience and Ethical Reputation Matters.
99% Approval on all Conditional Green Card Waiver Cases* (for the divorced or abused immigrant or immigrant facing extreme hardship if deported)
100% Approval on all Joint Petitions to Remove Condition on Permanent Residency (married couples)*
* as of 6/2011. Approval rate does not guarantee success on your particular matter. Whether or not your case is likely to be successful depends on the facts, the law, and available evidence. No attorney can legally guarantee an outcome. For more information on whether the Attorney believes your case will be a success, contact us for a free consultation.
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