Conditional Status

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Greencard - US / Irish Immigration Questions

Conditional Status

September 4, 2008

GreenCard by Debbie McGoldrick

“I HAVE a conditional green card and was recently separated from my American spouse. She has asked for a divorce and wants me to move out and go back to Ireland. My conditional status is due to run out in December.

“My query is this – how will that affect my lifting the conditions on the green card?”

AS you undoubtedly know your situation will need to be handled with great care, so you should immediately get yourself a qualified immigration attorney who can help you through the process of securing a permanent green card, if it turns out you are eligible for one.

Those who marry U.S. citizens are granted conditional green cards if the marriage is less than two years old at the time the new status is approved, in order to demonstrate to the United States Citizenship and Immigration Service (USCIS) that the marriage was entered into for genuine reasons of compatibility, love, etc. – as opposed to solely obtaining a green card.

The conditional cards are valid for two years. The couple must apply to have the condition removed and the status made permanent during the 90-day period prior to the card’s expiration.

The USCIS form required to complete the process, the I-751, is filed jointly by the couple in the perfect scenario when the marriage is still intact, or solo by the conditional spouse if the union is not intact.

From your letter, it doesn’t seem as if your wife is in any mood to file the I-751 paperwork with you, and wait until your status has been made permanent before moving to end the marriage. That, again, would be the ideal solution, but failing her cooperation you can file the I-751 on your own, and request a waiver of the joint filing requirement.

Waivers can be given by USCIS, but given the extra scrutiny that marriage-based permanent resident cases get they’re not easy to obtain. You, guided by your attorney, should submit the I-751 immediately, as the 90-day usual requirement does not apply to those filing on their own.

Waivers can be granted for the following reasons, all requiring documented proof – when a conditional resident’s removal from the U.S. would cause extreme hardship; when a marriage was entered into in good faith, but the marriage ended in divorce/annulment; when a marriage was entered into in good faith, but during the marriage the conditional resident was battered or subjected to extreme cruelty.

How to prove a marriage was entered into with good faith intentions? Having a child together is compelling evidence, but if that doesn’t apply there are other ways, including joint ownership of property, joint financial records, and affidavits from people who would know the couple in question and have knowledge of the marriage. The more evidence provided, the stronger the case will be.

Is your wife asking that you return to Ireland because of the I-864 affidavit of financial support document she would have filed with your conditional green card paperwork? Affidavit obligations – i.e., assuming financial responsibility for the green card applicant should the person become a public charge requiring U.S. government assistance – do not end even when a divorce takes place, so perhaps this is bothering her.

Whatever happens, make sure and have top-notch legal help as you proceed.

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