Removal of conditions after divorce

NOONG isang linggo ay aking tinalakay ang Removal of Conditions on Green Card. Sinabi ko na kapag ang green card ay nakuha sa pamamagitan ng kasal sa isang U.S. citizen (USC) at ang kasal ay wala pang 2 taon noong naaprubahan ng USCIS ang green card, ang green card na makukuha ng dayuhan ay conditional green card na may bisa na 2 taon. Ang dayuhan ay tinawag na conditional permanent resident (CPR). Upang matanggal ang conditions sa green card, ang CPR ay kailangang mag-file ng I-751 Petition to Remove Conditions on Residence sa loob ng 90 araw bago ang ikalawang anibersaryo niya bilang conditional resident (90-day limit). Kapag ang CPR ay nag-file ng I-751 Petition, kailangan niyang magbigay ng ebidensya na magpapatunay na ang kanyang kasal sa USC ay totoong kasal at ang kasal ay hindi naganap upang lumabag sa US immigration laws. Ang I-751 Petition ay joint petition at kailangang pirmahan ng CPR at asawang USC.

Ngunit paano kung ang USC at CPR ay nag-divorce na bago ang 2nd anniversary ng green card ng CPR? Sa ganitong sitwasyon, ang joint petition para sa removal ng conditions ng green card ay hindi na possible. Ngunit ang CPR ay kailangan pa ring mag-file ng I-751 Petition to Remove Conditions on Residence at dapat siyang humingi ng waiver ng joint filing requirement. Ang 90-day limit ay hindi kailangang sundin para sa pag-file ng waiver request. Sa ilalim ng Immigration and Nationality Act (INA), ang waiver ng joint filing ay maaaring maaprubahan sa tatlong paraan: (1) Extreme hardship sa dayuhan ang magiging resulta kung siya ay made-deport (hardship waiver); (2) Ang kasal ay good faith marriage at ang dayuhan ay hindi nagpakasal para lamang makakuha ng green card. Maliban dito, ang divorce ay hindi dahil sa kasalanan ng dayuhan (good faith marriage waiver); o (3) Ang kasal ay good faith marriage, ngunit sa loob ng kasal na ito, ang dayuhan o ang anak ng dayuhan ay inabuso at sinaktan o kaya pinailalim sa matinding kalupitan ng asawang USC (waiver based on extreme mental cruelty or battery).

Kung mayroon nang divorce decree bago pa ang 2-year anniversary ng conditional green card, ang basihan ng waiver ng joint filing requirement ay good faith marriage waiver.

Kailangang mapatunayan ng CPR sa USCIS na may mga mabisang dahilan para sa exception sa joint filing requirement dahil ang kasal ay totoong kasal at hindi business transaction para lumabag sa US Immigration Laws. Ang mga ebidensya ng bona fide marriage ay mga dokumentong magpapakita ng commitment ng mag-asawa sa isa’t-isa tulad ng pagsasama ng kanilang mga pera at kayamanan, haba ng kanilang pagsasama bilang mag-asawa, at birth certificate ng kanilang mga anak. Ang I-751 Waiver ay discretionary kaya’t ang CPR ay kailangan ding magbigay sa USCIS ng paliwanag kung bakit sila ay nag-divorce; na ito ay hindi kasalanan ng CPR, ngunit kasalanan ng asawang USC – tulad ng pag-iwan at pag-abandona sa kanya ng USC, pagkakulong ng USC, o pangangalunya ng USC.

Last week I discussed Removal on Conditions on Green Card and stated that when a green card is obtained through marriage to a U.S. citizen (USC) spouse and the couple is married less than 2 years during the adjudication of the green card, the green card that the alien/conditional permanent resident (CPR) will receive will be a conditional green card, valid for 2 years. To remove the conditions on the green card, the CPR must file an I-751 Petition to Remove Conditions on Residence during the 90 days before his 2nd anniversary as a conditional resident (“90-day limit”) and submit evidence on the bona fides of the marriage – the marriage was not entered into for the purpose of evading US immigration laws. This Petition is a joint petition that must be signed by the CPR and USC spouse.

But what happens if the couple is already divorced before the 2nd anniversary of the green card? If a divorce decree is obtained, the joint petition for removal of conditions on green card will not be possible. The CPR will still need to submit an I-751 Petition to Remove Conditions on Residence, but the CPR will have to request for a waiver of the joint filing requirement. The 90-day limit is not imposed for the filing of a waiver request.

Under the Immigration and Nationality Act (INA), waiver of joint filing may be obtained under the following three circumstances: (1) Extreme hardship will result if the alien is deported (hardship waiver); (2) The qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through death of the spouse) and the alien was not at fault (good faith marriage waiver); or (3) The qualifying marriage was entered into in good faith by the alien spouse and during the marriage, the alien spouse or child was battered by or subject to extreme cruelty perpetrated by the USC spouse (waiver based on extreme mental cruelty or battery).

If a divorce decree has already been obtained before the 2-year anniversary of the conditional green card, the basis for the waiver is good faith marriage waiver. The CPR has to convince USCIS that valid reasons exist to allow an exception to the joint filing requirement by showing that the marriage was bona fide and was not a “business transaction” for the purpose of evading US immigration laws. The evidence of bona fide marriage should include evidence relating to the amount of commitment by both parties to the marital relationship such as documentation of joint financial activities, length of residence together, and birth certificates of the children born of the marriage. I-751 Waivers are discretionary so the CPR must prepare a written explanation as to why the marriage ended and if possible, submit documents on the circumstances surrounding the end of the marriage not due to the fault of the CPR such as abandonment, imprisonment or adultery of the USC spouse.

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ATTY. RHEA SAMSON is the principal of SAMSON LAW FIRM, P.C. She has been a member of the State Bar of California for over 15 years and the Integrated Bar of the Philippines for over 20 years. Atty. Samson received her Legal Management degree from the Ateneo de Manila University and her Juris Doctor degree from the Ateneo Law School. She was a Professor for over 10 years, teaching Obligations and Contracts, Labor Laws and Social Legislation and Taxation Law. Atty Samson is the author of The Law on Obligations and Contracts (2016), Working with Labor Laws-Revised Edition (2014) and Working with Labor Laws (2005).

SAMSON LAW FIRM, P.C., 3580 Wilshire Boulevard, Suite 1710, Los Angeles, CA 90010; Phone: (213) 274-4561; Email:info@samsonlawfirmpc.com.

Atty. Rhea Samson

ATTY. RHEA SAMSON is the principal of SAMSON LAW FIRM, PC. She has been a member of the State Bar of California for over 15 years and the Integrated Bar of the Philippines for over 20 years. Atty. Samson received her Legal Management degree from the Ateneo de Manila University and her Juris Doctor degree from the Ateneo Law School. She was a Professor for over 10 years, teaching Obligations and Contracts, Labor Laws and Social Legislation and Taxation Law. Atty. Samson is the author of The Law on Obligations and Contracts (2016), Working with Labor Laws-Revised Edition (2014) and Working with Labor Laws (2005). Visit our office at SAMSON LAW FIRM, P.C., 3580 Wilshire Boulevard, Suite 1710, Los Angeles, CA 90010; Phone: (213) 381-5710; Email: info@samsonlawfirmpc.com.

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