Residence Status and
1. The Two-Step Procedure Under the Immigration Marriage Fraud Amendments
For those persons without permanent residency in the U.S., A marriage with U.S. citizen also presents an opportunity to obtain U.S. permanent residency. Because concerns that some persons married to United States citizens merely to obtain U.S. permanent residence status, a two-step procedure under the Immigration Marriage Fraud Amendments (IMFA) was set up to ensure such immigration status was given to those only in marriages that are bona-fide, and not entered into simply for immigration purposes.
In the step one, if a person is petitioned by the U.S. citizen spouse within 2 years after married, the alien spouse is given only conditional permanent residence. Such conditional permanent residence status lasts for 2 years from the date on which it is granted.
In the step two, the alien spouse needs to remove the conditional permanent residence status. Removal of the conditional status is initiated by filing Form I-751 Joint Petition to Remove Condition to Permanent Residence. The joint petition provides an opportunity for USCIS to inquire as to the legitimacy of the marriage after conditional permanent residence is granted.
Therefore, documentation evidencing that the marriage was entered into for bona-fide reasons should be submitted as part of the joint petition. It must be filed with the USCIS service center in the 90 days immediately prior to the second anniversary of the granting of conditional permanent residence.
2. The Conditional Permanent Residence Status
If you have been married for less than two years when your spouse enters the United States on an immigrant visa, the permanent resident status is considered “conditional.” The immigrant visa is a conditional resident (CR) visa, not an immediate relative (IR) visa.
A lawful permanent resident is given the privilege of living and working in the United States permanently. A permanent residence status will be conditional, if it is based on a marriage that was less than two years old on the day the alien spouse was given permanent residence. The alien spouse is given conditional resident status on the day he or she is lawfully admitted to the United States on an immigrant visa or receive adjustment of status.
The U.S. citizen and alien spouse must apply together to remove the conditions on the alien spouse's residence. They should apply during the 90 days before their second anniversary as a conditional resident. The expiration date on the alien registration card (commonly know as Green Card) is also the date of the second anniversary as a conditional resident. If the U.S. citizen and alien spouse do not apply to remove the conditions in time, the alien spouse could lose the conditional resident status and be removed from the country.
3. The Conditional Green Card Will Expires after Two Years?
Because of the concern of the marriage being likely to be shams, U.S. Citizenship and Immigration Services (USCIS) will review the validity of the marriage based Green Card, by initially making the new immigrant a "conditional," not "permanent" resident. Aliens who obtain permanent residence (Green Card) based upon a petition filed by a U.S. citizen spouse may be subject to conditional residence status for two years.
The conditional residency will expire after two years. Before the expiration date, the immigrant will have to apply for permanent status. The application process involves proving that the marriage is ongoing, and supplying further proof that the couple is truly establishing a life together.
This also means that the conditional Green Card will expire after two years, unless the Form I-751 is filed and approved. This allows the USCIS to double check and reassess whether the marriage was real at the time of its inception.
4. Conditional Green Card is Extended to Children who Obtain Permanent Residence Based Upon the Marriage of that Parent to a U.S. Citizen
Aliens who obtain permanent residence (Green Card) based upon a petition filed by a U.S. citizen spouse may be subject to conditional residence status for two years. Permanent residence will be conditional, if the duration of the marriage has been less than two years at the time permanent residence is granted. This means that it will expire after two years, unless the Form I-751 is filed and approved. This allows the USCIS to double check and reassess whether the marriage was real at the time of its inception.
This same conditional grant of permanent residence is extended to children who obtain permanent residence based upon the marriage of that parent to a U.S. citizen, when the marriage is less than two years in duration. If the parent's marriage is not real, then the children of the alien can not obtain any immigration benefits as the result of the marriage.
5. How to Remove the Conditions
If you are a U.S. citizen or Green Card holder, if you have been married less than two years when your alien spouse is granted U.S. permanent resident status, the alien spouse will receive U.S. permanent resident status on a conditional basis.
To remove the conditions on you spouse's residence status in United States, you and your spouse should apply together using USCIS Form I-751, Petition to Remove the Conditions of Residence. You must apply to remove conditional status within the 90-day period before the expiration date on the conditional resident card. If you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal from the United States.
If your alien spuse has a child in previous marriage and if you are petitioning for a step-child and have not been married to the child’s genetic parent genetic or legal gestational mother for 2 years at the time the child receives permanent residence, the child will be granted conditional permanent resident status also.
Therefore Form I-751 can also be used to remove the conditional basis of permanent residence for the child. If your spouse and child became conditional permanent resident at the same time or within 6 months, the child can be included in your spouse’s petition. If the child became a permanent resident more than 6 months after your spouse, the child will need to file a separate Form I-751.
6. The Interview and Denial of the Removing the Conditional Permanent Residence Status
USCIS has the authority to deny the removal of the conditional permanent residence status, in cases where it is clear a marriage was entered into in order to evade immigration laws. These are cases in which marriage was used solely to obtain the Green Card and not for genuine marital purposes.
Under the USCIS procedures, the interview could be waived by the Service Center, in any case it was convinced that the marriage was real. In a situation where the evidence was sufficient to reflect a real marriage, the case could simply be approved by the Service Center without the need for an in-person interview at the local office.
A case that was questionable in terms of whether it was real may be forwarded to the local USCIS office for an interview. The local offices would conduct personal interviews with the parties to the marriage prior to making a final decision. Some of these cases can be denied without the in-person interview.
7. The Consequences of Divorce for Immigration purposes
A divorce is a legal termination of a marriage. Whether a termination of a marriage is deemed legal, and as a result effective, depends on the law of the state or country where the divorce took place. Generally, if the state law recognizes an action to terminate a marriage as a divorce, a marriage no longer exists between the affected parties for immigration law purposes.
For the most part, physical or legal separation (i.e., a separation formalized by a court) of married parties does not constitute a legal termination of a marriage. This is the case even in circumstances where each party of the marriage has no intention of residing with each other again. However, in some instances, a legal separation may be considered a legal termination of a marriage for immigration law purposes. This occurs when the law of a state or country converts legal separations automatically into divorces after a period of time.
Generally, if the marriage is terminated by divorce before permanent resident status is granted (i.e., before adjustment of status is granted for those aliens who applied for adjustment), the beneficiary will not be eligible for permanent resident status through this relationship.
Children of aliens who are married to a U.S. permanent resident or citizen may obtain permanent resident status in many instances through their step relationship with their alien parent's spouse. As is the case with the alien parent, if the marriage terminates before permanent resident status is granted, the beneficiary or derivative beneficiary will not be eligible for permanent resident status through this relationship.
8. Joint Filing USCIS Form I-751 with Troubled Marriage
USCIS Form I-751 can be filed by a couple jointly, even it they are legally separated or in the process of divorce. But USCIS will review these Form I-751 applications carefully, because there is a potential indication that the marriage may not have been real at its beginning.
In these I-751 application cases, the USCIS may issue a Request For Evidence (RFE) asking for response in certain time. This RFE will request a copy of documentation proving termination of the marriage, and a request to have the joint petition treated as a request for a waiver of the joint filing. This allows the alien applicant to obtain the waiver, if the marriage has been terminated, without having to re-file the I-751.
If there is no response to the RFE, or the response does not establish that the marriage is terminated, the USCIS will adjudicate it as a joint petition. The result will depend on the evidence of real marriage. The I-751 application case may be forwarded to a USCIS field office for an in-person interview to determine if the marriage was real at the time when the couples entered into the marriage. It is often the case that a marriage is genuine at the outset, but ultimately does not survive.
9. The Waiver of Joint Filing Requirement to Remove the Conditions on Green Card
The conditional permanent resident status is given to individuals who receive U.S. permanent residence (Green Card) status via a recent marriage to a U.S. citizen. If a marriage has been less than two years in duration at the time U.S. permanent residence is granted, the status of the foreign national spouse then is "conditional." USCIS Form I-751 is used to remove the conditions on residency.
The condition is that it expires within two years, unless the Form I-751 is filed at the appropriate time, to request that the conditions be removed. If the Form I-751 application is approved, the foreign national spouse becomes a U.S. permanent resident without any conditions. The conditional status is an anti-fraud measure, and is necessary to provide updated proof of a real marriage in support of the I-751 form.
- This form can be filed jointly, with both husband and wife signing the form;
- Alternatively, it is possible to request a waiver of the joint filing requirement, if the marriage was entered into in good faith, but was subsequently terminated;
- It is also possible to obtain a waiver of the joint filing requirement, if the marriage was entered into in good faith, but there was abuse;
- It is also possible to request a waiver of the joint filing requirement, if removal of the foreign national spouse would result in extreme hardship.
10. Can a Widow of U.S. Citizen Apply for Immigrant Visa with Form I-130 by Herself?
If an alien spouse was married to a U.S. citizen, the alien spouse was in an especially good position to get a Green Card in the United States. Even if the U.S. citizen spouse died before filing the initial visa petition of USCIS Form I-130 for the alien spouse, or before the Form I-130 petition was approved by USCIS.
For this kind of situation, the alien spouse may be able to carry on and file the immigrant visa petition of USCIS Form I-360 by herself or himself. Unlike other family beneficiaries, the alien spouse need not have an Affidavit of Support filed on her or him behalf for this situation. But there is a deadline to file the Form I-360. The alien spouse must file the Form I-360 petition no later than two years after the death of the U.S. citizen spouse.
11. How Long Does It Take to Get My U.S. Citizenship
A: Most U.S. Permanent Residents have to wait 5 years after receiving Green Card to qualify for U.S. Citizenship. However, the immigration law gives a break to spouses of U.S. Citizens.
If you are a U.S. permanent or conditional resident, you cannot apply for U.S. citizenship until you have lived in U.S. as a lawful permanent resident for at least five years. That means exactly five years to the day. You can check your U.S. permanent resident card for the exact date on which you became a permanent resident.
If you start out as a conditional resident rather than a permanent resident, because you got your residence through your marriage to a U.S. citizen, your two years as a conditional resident count as permanent residence.
If you have been married for at least 3 years, and your spouse has been a U.S. Citizen for at least 3 years, you are eligible for citizenship 3 years after you become U.S. Permanent Resident. Actually, you are allowed to apply for naturalization 3 months before the end of your 3 year residence.
The U.S. citizenship application must be submitted by mail, using USCIS Form N-400. USCIS will take a long time to process the N-400, to arrange for you to be fingerprinted, and to call you in for the interview at which it actually reviews your application, tests you on your knowledge of English and U.S. government, and makes a decision on whether to approve or deny you. USCIS may take at least 90 days to call you in for your interview.
12. My U.S. Citizen Husband Died Recently, What Happens for the Pending Form I-130 Petition?
If a widow remained in the U.S. after the U.S. citizen husband and petitioner died, while awaiting the result of Form I-130 petition, widow will not be deemed as unlawful presence with the U.S. immigration policy.
This policy applies only to widow or widower who had a Form I-130 petition pending at the USCIS. If the U.S. citizen spouse never filed a Form I-130 for the alien spouse, the widow or widower may file a Form I-360 within the applicable filing period.
In the past, an immigration petition could not be approved if the petitioner died while the petition remained pending. U.S. Congress had addressed this scenario with a new statutory provision, INA 204. This provision gave foreign nationals the ability to seek an immigration benefit through a deceased qualifying relative in certain circumstances. An USCIS officer may approve an immigration petition if:
* The applicant resided in the United States when the qualifying relative died;
* The applicant continues to reside in the United States on the date of the decision on the pending application; and
* The applicant is at least one of the following:
1) A beneficiary of a pending or approved immediate relative immigrant visa petition;
2) A beneficiary of a pending or approved family-based immigrant visa petition, including both the principal beneficiary and any derivative beneficiaries;
3) Any derivative beneficiary of a pending or approved employment-based immigrant visa petition;
4) The beneficiary of a pending or approved Refugee/Asylee Relative Petition (Form I-730);
5) A foreign national admitted as a derivative T or U nonimmigrant; or
6) A derivative asylee.
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