Life After Divorce or Separation: Will I Lose My Legal Status?
For many men and women who are conditional residents of the United States, separation and/or divorce before the two year anniversary can have a severe impact on their legal status in the United States. Not only are these persons dealing with the upheaval of emotions that a separation/divorce invoke but they must also face a very serious question relating to their legal status and ability to remain lawfully in the United States.
In 1990, the IMMACT was enacted to deter marriage fraud. As a result, all persons who obtain their legal residence prior to their second marriage anniversary are granted CONDITIONAL Resident Status for a period of two years. Most district adjudication officers provide conditional residents with a notice at the final interview, informing them that the parties must file a petition to remove the conditions prior to the expiration of the second anniversary as a conditional resident.
Failure to timely file this joint petition will cause the conditional resident status to be automatically terminated therefore, the alien spouse is left in legal limbo without any lawful status in this country.
Ninety days before the two year anniversary, a “filing window” opens within which the petition must be jointly filed. If the petition cannot be jointly filed because of divorce or separation, the conditional resident has the option of applying for a waiver of the joint filing requirement.
There are three bases for the waiver. THe alien spouse must show that deportation from the United States will result in an extreme hardship. The other bases is Good Faith Marriage, wherein the alien spouse must prove that the marriage was entered in good faith and not for the sole purpose of immigration benefits. Finally, the Battered Spouse waiver, wherein the alien spouse must prove that she or her children have been subjected to domestic violence. The good faith marriage waiver is not available to the conditional resident until a divorce judgment has actually been entered in a court of law. The good news is that a conditional resident can apply for a waiver on all grounds that apply to that person’s circumstances.
Upon applying for the waiver and paying the filing fee of $205.00, the Service will send the applicant a receipt wherein, the conditional resident status will be extended for one more year. During this time the conditional resident will have legal status and can travel abroad and go about their daily affairs as usual and their status will not be interrupted until the waiver petition is adjudicated.
In order to properly adjudicate the application, the service could send a request for additional evidence and more likely than not will require an interview with the applicant. If the waiver petition is approved then the conditional status will be removed and permanent resident status will be granted.
In the event that the Citizenship and Immigration Service denies a waiver application, the Conditional Resident will be served with a Notice to Appear and will be referred to Immigration Court to face deportation proceedings. This is not always a bad thing, because in deportation proceedings, an immigration judge will review the denial, hence the applicant will have a second bite at the apple.
It is of utmost importance that the alien spouse consults with an Immigration attorney to ensure that all avenues of relief are explored. A well prepared and documented waiver application has a good chance of being approved to ensure that the alien spouse does not lose their legal status as the result of the divorce or separation.