Divorce and Conditional Residence

A couple of years ago I was hired to help a young US Citizen get a Green Card for his wife, a young lady from The Philippines. She’d entered as a Visitor (B-2), over-stayed, and at some point or other along the way had fallen in love with This Guy. I have no idea what she ever saw in him, but I could’ve told her straight away that it would end in tears. He was just a cute… a dumb kid with no apparent aim. Which is why it was tough to get their I.130/I.485 package together. Every such I-130 Petitioner has the burdens of proving:

  1. the bona fides of the marriage (in other words, that it’s a legitimate marriage and was entered into in good faith); and
  2. by way of the I.864, Affidavit of Support, that he can provide financially for his spouse, lest she becomes a “public charge.”

And doing either of these things can be a challenge if the Petitioner is flat broke.

With respect to (A), for example: What the service looks for is evidence that the couple is actually A Genuine Couple. Love enters into the inquiry, sure. But what it finally comes to is a rather mundane Accounting of Love— and I’d say that theirs remains a rather Old School notion of how Love actually works. So you’re truly committed to one another, eh? Why no kids, then? Why no car payment, no mortgage, no joint credit cards? Why have you not bought into the American Dream?!

With respect to (B), it’s simpler: Petitioner either makes enough money to cover his spouse or not. (See the Poverty Guidelines.) If not, then he needs to find a Co-Sponsor who does have money and is also willing to sign on.

These two had little. No car. Neither mortgage nor lease (they lived with an uncle who covered the utilities). Joint bank account, but no shared debt. No money, so no photos from trips to Paris, Prague, or Portland, Ore. Still, we got it done. A Conditional Green Card! Thankfully, the Client’s mom co-sponsored his lovely wife.

So, What is a Conditional Green Card?

Type that question into your search engine and the USCIS site is likely to come up near the top. It says there: “A conditional permanent resident receives a green card valid for 2 years. In order to remain a permanent resident, a conditional permanent resident must file a petition to remove the condition during the 90 days before the card expires. The conditional card cannot be renewed. The conditions must be removed or you will lose your permanent resident status.”

Read that again and you’ll note that the service first refers to “the condition” having to be removed, and then to “the conditions” (plural) which have to be removed. Which is it? And what is it (or what are they)? And why any condition(s) at all?!

Hung up on semantics, what I tell my clients is that their ‘Conditional Green Card’ is probably better understood as a ‘Probationary Green Card.’ For it’s issued only to those who’ve been married to a US Citizen or Legal Permanent Resident for less than two years at the time they’re found to qualify; and the sole “condition” attached is that they essentially re-affirm, within a prescribed period, the bona fides of their marriage. It’s a Do-Over. It’s the Service taking a second look at your marriage— in fact, at your eligibility generally— to finally determine whether or not it’s a Fraud. See INA § 216.

The I-751, Petition to Remove Conditions on Residence

To get this second look and a shot at an actually-permanent Green Card, a Conditional Green Card holder, and his or her spouse must:

  1. jointly file the I-751 within the 90-day period before the expiration of their im-permanent Green Card; and
  2. appear together at a CIS interview— unless the service waives this requirement, the best-case scenario.

There are exceptions to this joint filing requirement; for instance, one obviously has to petition alone if his or her US Citizen or LPR spouse has passed away. But in any case, a Conditional Permanent Resident must be able to show persuasively that his or her qualifying marriage was entered into in good faith. My former client and his young wife from The Philippines? Well, they did timely file together, but— after they filed and before the 751 was adjudicated— he confessed that he’d cheated on her a second time. Oh, and this time he managed to get his Other Woman pregnant. What to do?!

Divorce and the Petition to Remove Conditions

Get a divorce, right? I’m surprised at how many people online actually contemplate just sticking it out. And I mean not just Carrying on a Crap Marriage, but also showing up at a CIS interview, smiling brightly, play-acting that all’s well on the Home Front. I think that’s crazy.

I Think, and especially in a case like Filipina’s, that in No Event should a Conditional Resident come to count on a crap spouse. The asymmetry of such a relationship can range from Just Plain Sad to Super-Creepy And Abusive. And, finally, I think it’s stupid to assume that you’ll pull it off! Are you really sure that your CIS interviewer will be so thick? Come On. It’s not Rocket Science, it’s People!

Thankfully, the state of the law is such that a Conditional Resident who married in Good Faith and divorced for Good Reason can still get an actually-permanent Green Card. This is INA § 204(c)(4)(B): “The Secretary of Homeland Security, in the Secretary of Homeland Security’s discretion, may remove the conditional basis of the permanent resident status for an alien who fails to meet the [joint filing] requirements… if the alien demonstrates that— (B) the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the [joint filing] requirements.”

But, interestingly, this statute doesn’t cover a case like Filipina’s. What it says is: If you married in good faith and divorced for good reason, you can ask us to waive the joint filing requirement and go it alone. There’s no telling what to do if your marriage falls apart while your jointly-filed petition is still under review.

What to do when you’ve jointly filed your I-751, but your marriage then falls apart before your case has been adjudicated?

The question comes up because the law says simply that 1) a Conditional Resident must file the I-751 jointly with his spouse, unless 2) he requests a waiver of the joint filing requirement because, though he married in good faith, he’s now divorced. It doesn’t cover every possible twist to When Love Breaks Down.

So what to do?

Generally speaking, if your marriage falls apart after you’ve jointly filed an I-751 you’ve got the following options:

  1. You can simply forget your jointly filed petition, get a divorce, and then file another, superseding I-751 solo, seeking a waiver of the joint filing requirement based, of course, on the so-called “good faith” exception. This is an option because, while there is a rule that jointly filed petitions must be filed within 90 days of the expiration of a conditional green card, there is no such specific filing period for a waiver request petition. The only apparent downside to this route is the waste of money in filing fees.
  2. Or the better option laid out in a CIS Memorandum from 2009, is to Remove Your Soon-To-Be Ex-Spouse from the Picture. Contact the Service and advise them that your marriage fell apart for whatever reason and that you’re separated and want a divorce. Ask that your petition be administratively amended so as to become a waiver request petition. You’ll then be issued an RFE (Request for Evidence) with a response period of 87-days. Get a divorce, include a copy of the judgment or decree with your response (thus establishing your eligibility for the waiver), and your petition will then be adjudicated on its merits.

It’s just a Bad Idea to carry on in a Crap Marriage thinking that you’ll show up at your I-751 interview and easily snow the Service. Do yourself a favor and get out of your loveless marriage. And give the Service its due. They’re not a bunch of idiots.

And finally, Talk To A Lawyer.

For there is no real cookie-cutter case. There is only Your Case and, believe it or not, it’s as Unique as You and Your Marriage and Your Life. What if, like my client, you’ve already been issued an RFE requesting additional evidence of the bona fides of her marriage? Or what if you get divorced before responding to the RFE or advising the Service of any change in circumstances? What if you’ve been issued a Notice to Appear at removal proceedings?! Or you’ve filed multiple petitions? Neither the law nor the Memo covers every possible wrinkle.

You’ve got to realize that your Residency is at stake.