When a foreign national marries an American citizen, he or she may want to apply for lawful permanent residence and eventually U.S. citizenship, with the American spouse as a sponsor. Initially, a spouse seeking permanent resident status on the basis of a marriage that is less than two years old receives conditional permanent resident status, which may be adjusted to permanent status after a period of time. If the couple divorce before the conditional period is over, the conditional permanent resident may still be able to get permanent residence under certain circumstances.

A conditional permanent resident generally needs to file a joint petition with his or her spouse in order to remove the conditions on his or her residency and become a permanent resident. However, if you are divorced from your spouse, you may not be able to file a joint petition. The U.S. Citizenship and Immigration Services (USCIS) allows a conditional permanent resident in this situation to apply for a waiver of the joint filing requirement, and apply for the removal of the conditions alone.

The most important factor in analyzing an application for a waiver on the joint filing requirement is that the couple has entered into the marriage in good faith, and did not commit marriage fraud. This means that if USCIS investigates and determines that the marriage was a sham, in other words, really an arrangement for the foreign national to get permanent residency and citizenship, the waiver will not be granted.

A domestic violence survivor who was battered, or had a child who was battered by an American spouse during the course of the marriage can also apply for a waiver without being divorced. This again requires the couple to have entered the marriage in good faith.

There are many things that can be considered indicators of a sham marriage, for example, if the couple never lived together or does not know details about each other’s lives. In order to prove that the marriage started out as a real marriage or in good faith, a conditional resident seeking a waiver can send in bank statements, evidence of having jointly owned property with the ex-spouse, and birth certificates of children born to the couple. Sometimes, if the couple went through marriage counselling before the divorce, letters from the counsellor or therapist may be helpful. Statements from friends and neighbors who can attest to the legitimacy of your marriage before the divorce may also be helpful.

Let Us Help You File Your Petition

If you fail to file a petition for the removal of conditional status by the time your conditional permanent resident status expires, USCIS can start removal proceedings against you. If you have a valid claim for a waiver, you may still be able to receive permanent resident status even if you are divorced or widowed.

To preserve your rights, make sure you file your petition before your time is up. For more information and assistance on filing a petition for the removal of the conditions on your residency, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.