Conditional Residence and Marital Problems

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Conditional residence is generally granted to people who have obtained green cards through a marriage that is less than 2 years old.  Conditional residence grants an immigrant all the rights that a normal green card would.  The only difference is that the conditional resident is required to file a petition to remove the conditions on their green card in the 90 day period before the second anniversary of issuance of the green card.  To successfully remove the conditions from a conditional green card, an immigrant must either jointly file to remove conditions with their sponsoring spouse, or apply for a waiver.  Waivers may be granted based on the death of the sponsoring spouse, divorce, spousal abuse or extreme hardship.

Recently, I have found that I am encountering more and more clients that are having complications with removing the conditions from their conditional green card.  The specific situation that has come up a number of times is that spouses are having marital problems with their significant other, and are unsure whether or not they will be able to file a joint petition to remove conditions.  The key point of law to remember in these situations is that a waiver of the joint filing requirement can only be sought if a final order of divorce or annulment has been made.  If the marital parties are merely separated, a waiver based on divorce can't be granted.   

Thus, the situation that has been arising more frequently is that the conditional resident can't seek a waiver because they do not have a final divorce from their spouse, and they are unsure of whether they will be able to file a joint petition because their spouse might refuse to sign.  The only advice that can be given to a conditional resident in this situation is that they must take a hard look at their relationship, and decide whether or not there is any chance for reconciliation.  If the conditional resident truly believes that their marriage can be salvaged, then they should discuss the petition with their significant other immediately and determine if the significant other is willing to sign.  If the conditional resident sees no chance for reconciliation, they they should commence the divorce process as soon as possible, as they will only be able to seek a waiver if the divorce is finalized before their conditional green card expires. 

For more information regarding conditional residence, click here.

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This page contains a single entry by Jonathan Portner published on May 19, 2009 12:20 PM.

T. Don Hutto: A Detention Center for Families was the previous entry in this blog.

The U Visa: Legal Status for Victims of Violent Crimes is the next entry in this blog.

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