It’s a sad truth that marriages, even when entered into in good faith, do not always last. A looming divorce is further complicated by immigration consequences for the foreign national spouse. Even if the US citizen spouse is supportive of the Immigration piece, the situation is not straight forward.
When a foreign national/nonimmigrant marries a US Citizen, he/she is provided with conditional permanent residence status. The conditional permanent resident receives a green card valid for 2 years. In order to remain a permanent resident, a conditional permanent resident must file a petition to remove the condition during the 90 days before the card expires. The conditional card cannot be renewed. The conditions must be removed or you will lose your permanent resident status.
Generally, you may apply to remove your conditions on permanent residence if you:
Are still married to the same U.S. citizen or permanent resident after 2 years.
Are a child and, for a valid reason, cannot be included in your parents’ application;
Are a widow or widower who entered into your marriage in good faith;
Entered into a marriage in good faith, but the marriage ended through divorce or annulment; or
Entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S.-citizen or permanent-resident spouse.
A 2009 memo issued by Donald Neufeld, Acting Associate Director of the USCIS, addresses the lack of a category for those who married in good faith, but are separated or in the process of divorce. The memo instructs officers who review these cases to issue requests for evidence (RFEs) when they encounter I-751 application requesting a waiver of the joint requirement, if the couple was still legally married at the time of the filing. The RFE has an 87-day period for response. The response must include proof of termination of the marriage.
If the foreign national can respond to the RFE within the allowed timeframe, providing proof of the termination of the marriage in the form of a divorce decree or annulment, then the case can be approved.
Also, once you divorce is final, you can apply to have the conditions removed at any time, you do not need to wait 2 years.
Therefore, it is important to consider the immigration consequences of a timeline for separation and divorce. While not impossible to have the condition removed, if the case is not properly managed, the opportunity may be lost.
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