Seguritan US Immigration Articles

Waiver of Joint Filing Requirement when Divorce is Pending

A marriage that is less than two years old when the alien spouse receives a green card results in conditional permanent residence for that spouse for a period of two years. Conditional residents and permanent residents have the same rights and restrictions under the law, except that conditional residents must have the conditions on their residence removed.

This is done through an I-751 petition jointly filed by the spouses with the USCIS, along with evidence of their valid marriage, within 90 days of the second anniversary of the alien spouse’s green card.

If the marriage does not last even for a period of two years and the I-751 is not signed by both spouses, the law allows the alien spouse to file a waiver of the joint filing requirement, which is also made on the I-751. The spouse can seek a waiver if the marriage was entered into in good faith but has been terminated through a final divorce or annulment.

But what if the divorce is not yet final, the 90-day window is running out, and the petitioning spouse refuses to sign the joint petition? The USCIS has clarified how it adjudicates I-751 petitions if the marriage has not been terminated but the spouses are legally separated or have initiated divorce or annulment proceedings.

If the divorce or annulment proceeding is still pending, the alien spouse can file the I-751 and request a waiver of the joint filing requirement. The adjudicator will issue a Request for Evidence (RFE) and give the alien spouse 87 days to give proof of the termination of the marriage. Usually the divorce will take place during this almost three-month period, which will allow the alien spouse to submit a copy of the final divorce decree.

Note that the alien spouse must still establish eligibility for the waiver by submitting evidence of a good faith marriage. This includes proof of joint ownership of property, such as a deed with both spouses’ names; joint tenancy, such as a lease agreement naming the spouses as tenants; and commingling of finances, such as income tax returns, bank statements, credit card bills and utility bills with the names of both spouses.

Birth certificates of children born to the marriage are a good evidence of the bona fides of the marriage. Affidavits of third parties, family pictures, documentation of vacations, communications addressed to the spouses may also be submitted.

If the alien spouse is eligible for a waiver and the divorce is already final, the I-751 petition will be approved and the conditions on permanent residence will be removed.

If the alien spouse cannot submit the divorce decree, or otherwise fails to respond to the RFE or to establish eligibility for the waiver, the I-751 will be denied and the alien’s conditional LPR status will be terminated.

The case will then be processed for issuance of a Notice to Appear in removal proceedings. At that stage, however, the alien spouse will have another chance to establish eligibility for a waiver before the immigration judge. The alien spouse can present a divorce decree, if already available at that time, or ask for continuance from the judge until the divorce is final.

On the other hand, if the petitioning spouse consents to sign the I-751 petition but a divorce or annulment proceeding is already pending, the alien spouse will receive an RFE giving him/her 87 days to submit the divorce decree and to request that the joint petition be treated as a waiver petition. This allows the alien spouse to request a waiver without having to re-file the I-751 after the divorce.

If the alien spouse submits decree and establishes eligibility for the waiver, the USCIS will grant the waiver and remove the conditions on the permanent residence.

But if the decree is not produced, the petition will be treated just like a joint petition. The adjudicator will look for sufficient evidence that the marriage was entered in good faith and determine if an in-person interview is needed.

If the adjudicator is satisfied that the marriage was bona fide, he/she will approve the I-751 petition and remove the conditions. Otherwise, the petition would be denied, the alien spouse’s conditional LPR status terminated, and the case is processed for issuance of a notice to appear in removal proceedings.

Preparing for a Marriage-Based Green Card Interview

Marriage to a U.S. citizen makes one an immediate relative for immigration purposes. Numerical visa limits will not apply and the alien spouse can adjust status immediately. On the other hand, marriage to a lawful permanent resident allows the alien to be a beneficiary of a second family preference petition, which has the shortest waiting times among all family-based visa categories.

The immigration benefit may be one of the reasons why some people marry. However, it may not be the only or the primary reason for the marriage.

The parties must have intended, at the time of the marriage, to establish a life together as husband and wife. If the spouses marry for the purpose of circumventing immigration laws, the USCIS will find the marriage fraudulent and deny the immigrant petition filed for the alien spouse.

Some of the red flags or indicators of a “sham marriage” are the following: short time between entry and marriage, unusual marriage history, large age discrepancy, unusual cultural differences, and low employment or financial status of the petitioner spouse.

When one or some of these factors are present, the spouses should gather documentation to prove the good faith of the marriage and be ready to address them at the interview.

The spouses must prepare evidence of their shared life. These include joint tax returns, joint bank account statements, lease agreements, joint mortgage statements, life insurance beneficiary designation, mail showing same residential address, cell phone bills, and photographs. There are no rules as to how much evidence would be sufficient, so in case the USCIS officer is not satisfied with the evidence given or would much rather hear from the spouses themselves, the couple must be prepared to be questioned thoroughly.

In all cases, but more so where a marriage has red flags, the couple must anticipate a hard interview. The USCIS officer can ask a wide variety of questions ranging from how the couple first met and who was present at their wedding, to the color of the bedroom wall and what the other spouse’s favorite meal is. At times, they may even be called back for a second interview, particularly when the USCIS detects fraud in the marriage.

In one case that our firm handled, the client and her spouse could not provide joint tax returns and other primary evidence to show a good faith marriage. The USCIS officer, probably suspecting that the marriage was fraudulent, scheduled them for a second interview. The alien spouse through our firm eventually obtained her green card.

At the interview, the couple must remember to always tell the truth and answer the questions without guessing or unnecessarily giving too many details. At the same time, they must know when not to answer a question. For example, they should not respond if they do not know or remember the answer at all, or if the officer’s question assumes or misstates a fact.

The couple must also try to be calm and focused throughout the interview, which could take an hour or even more. Needless to state, adequate preparation by the spouses is valuable. A lawyer can help the spouses prepare for the interview in addition to representing them at the interview itself.

One of our former clients was the beneficiary of a petition by her U.S. citizen spouse, who was over 20 years her senior. At her visa interview, she gave a few inconsistent answers which led the consul to deny her immigrant visa application, perhaps considering also the large age difference between the spouses. She was not assisted by an attorney at the time. She later retained our firm and we helped her appeal the visa denial. We were able to establish the “bona fides” of their marriage and she eventually got her green card.

There are criminal and civil consequences if a marriage is found to be fraudulent. Aside from liability for false testimony and perjury, a person who knowingly enters into a marriage for the purpose of evading immigration law may face imprisonment of up to 5 years and/or a maximum fine of $250,000.

Any subsequent petition filed on the alien’s behalf is also barred from being approved if the USCIS finds that a marriage was entered into to evade immigration laws. This includes petitions filed by employers, future spouses, and other relatives. No waiver is available if there has been a finding of marriage fraud.

Even a previously-granted conditional residency may be terminated if the USCIS later determines that the marriage was fraudulent, and in that case the alien may be placed in removal proceedings.

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