Removal of Conditions when Separated from U.S. Citizen Spouse
Posted on May 18, 2010 8:41am PDT
If a non-citizen is married to a U.S. Citizen for less than 2 years at the time of the Immigration (Green Card) interview, the foreign national is granted Conditional Permanent Resident Status (CPR). After two years, the CPR must file a petition to remove the conditions on form I-751 with USCIS.
This application is to be filed jointly, by both husband and wife or the foreign national may reques a waiver of the joint filing requirment if the non-citizen can establish:
1. Removal from the USA woudl result in extreme hardship;
2. The CPR entered the marriage in good faith, but the marriage was terminated (other than through death); OR
3. The CPR entered the marriage in good faith, but the petitioning spoiuse or parent battered the CPR spouse or child.
Their
must be a final divorce
in order to request a waiver.
If not divorced, a removal of conditions application must be filed jointly. To obtain approval, it must be demonstrated that:
1. The CPR and petitioning spouse (unless deceased) jointly file an 1-751 within the 90 days immediately before the two year anniversary of the date the CPR obtained permanent resident status;
2. The CPR and petitioning spouse (unless deceased) appear for an interview; and
3.USCIS determines the following facts are true:
o The marriage was legal where it took place;
o The marriage has not been terminated;
o The marriage was not entered into for the purpose of procuring permanent resident status; and
o No fee (other than to an attorney for filing assistance) was paid for the filing of the underlying 1-130 or 1-129F.
The statute and regulations require approval of the 1-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated andlor have initiated divorce or annulment proceedings.
For more information, please contact our office or visit our website at www.rmlegal.com.