USCIS Provides New Guidance for Marriage Cases

Marriage to a US citizen is a well known path to permanent residency (the green card) as long as the marriage is not a sham. The process is relatively quick and even allows immigrants who are in the US and out of status to become permanent residents.  Because of the immigration benefits associated with marrying a US citizen, there is a temptation for many immigrants to enter into a sham marriage.

The immigration law and immigration service are not blind to this fact.  The law and immigration policies are specifically set to detect and deter sham marriages.  The penalty for violation is severe.  An immigrant found to have entered into a sham marriage in order to obtain immigration benefits is banned for life from being petitioned as an immigrant.   This can also result in criminal convictions for both parties. 

The penalties serve as strong disincentives to entering into sham marriages.  Nevertheless, the temptation is still there so other measures were developed to determine the bona fides of the marriage.

If a couple has been married for less than two years at the time permanent resident status is granted, immigration law dictates that a conditional resident status be granted.  This is a resident status valid for two-years only.  On the second anniversary of conditional resident status, both spouses must file a joint petition to remove the condition.

The joint petition must again prove to the government’s satisfaction that the marriage continues to exist and that it was not entered into for the purposes of obtaining an immigration benefit. Failure to file the petition to remove the condition will result in termination of resident status and typically leads to deportation proceedings. Again, these are strong disincentives to enter into a sham marriage.

While the immigration laws and regulations are meant to ensure only valid marriages result in full immigration benefits, a rigid requirement for a joint petition for removal of condition does not fit every circumstance.  For example, an immigrant spouse who is physically or mentally abused by the US citizen spouse should not be expected to remain in a dangerous marriage in order to file a joint petition.

There are also couples who entered into marriages in good faith, but for whatever reason, the marriage does not work out. They end up separating or divorcing before the two years are up. Immigration law recognizes these circumstances and allows for waivers for a joint filing.  For those couples who have divorced, the immigrant spouse may apply for the removal of the condition with a good faith marriage waiver.

In many states, finalizing a divorce takes several months. Many conditional residents who married in good faith, have found themselves in the midst of a divorce without a final decree at the time the petition to remove the condition was due. Until recently this meant that they were required to file two petitions.The first was a joint petition, and the second a good faith marriage waiver when the divorce was finalized. The USCIS recently forwarded guidance to its adjudicators involving parties that are divorcing.

Adjudicators are to request additional evidence to resolve issues and for the parties to provide a final divorce decree.  The immigrant will be provided an 87-day response time.  Once the divorce is received, the basis for removal of conditions will be converted to that of a good faith marriage waiver and the immigrant will not need to file a new petition.

This is a significant change that will result in faster processing times and save the duplication of efforts and fees.  The finality in a decision to remove the condition will allow the immigrant to enjoy the peace of mind that comes with the full benefits of permanent resident status. 

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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.