A PERSON who obtains his/her green card via marriage to a US citizen spouse, and who is married for less than 2 years has conditional permanent resident status.  A conditional permanent resident has a green card that is valid for 2 years. 

In order to continue to have permanent resident status after 2 years, the conditional permanent resident and his/her US citizen spouse must file an I-751 Petition to Remove Conditions on Residence during the 90 days before the expiration of the green card.  8 CFR 216.4(a)(1)

But what if things don’t work out with the US citizen spouse after getting married, and the conditional permanent resident can no longer get the participation of his/her US citizen spouse in filing the I-751 petition?  In such a case, the conditional permanent resident may seek an I-751 waiver of the joint filing requirement.  In order to qualify for an I-751 waiver of the joint filing requirement, the conditional permanent resident must show that the marriage upon which his/her status was based was:  1) entered into in good faith, and 2) terminated.  8 CFR 216.5(a)(1)(ii)

With respect to the required showing that the marriage was entered into in good faith, the conditional permanent resident must show that his/her marriage was not a “sham.”  A marriage is considered a “sham” if, when they married, the couple did not intend to establish a life together.  An intent to obtain something other than or in addition to love and companionship (such as a green card) from that life does not make a marriage a sham.  Matter of Soltan, A76 888 125 (BIA 2001).  Documents such as joint bank and credit card statements, and photos that demonstrate that the marriage was entered in good faith should be presented.

Also, in order to qualify for an I-751 waiver of the joint filing requirement, the conditional permanent resident must show that the marriage was terminated.  By “terminated,” the USCIS requires a valid, formal divorce judgment.  An I-751 waiver of the joint filing requirement cannot be approved in cases where the conditional permanent resident is legally separated or in divorce proceedings that are still pending.  Also, once the marriage is terminated, the conditional resident may file the I-751 petition immediately, and does not have to wait until the normal 90 days before the expiration of the conditional green card.

It is worth noting that if the conditional permanent resident and his/her US Citizen spouse live in California, a valid divorce judgment must be obtained in the California courts.  I have had numerous California-resident clients in the past who have obtained a “quick” divorce judgment in Nevada only to face USCIS scrutiny after presenting the Nevada divorce judgment in support of an I-751 waiver request (since one must be a Nevada resident to obtain a divorce in Nevada).   The assistance of an experienced attorney in handling the divorce as well as the I-751 waiver request is accordingly recommended. 

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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada.  Mr. Tan is a graduate of UCLA and Southwestern University School of Law.  He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.

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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010.  Tel:  (323) 639-0277.  Email: info@dtanlaw.com.

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