Immigration law in the United States is designed to prevent people from getting married for the sole purpose of obtaining legal residence.
For this reason, marriages terminated less than two years after admission to the United States sometimes result in the removal of your permanent resident status.
However, not all marriages that end within the required two years will subject a former spouse to deportation.
For example, if the spouse (who is potentially subject to removal) has been the victim of abuse by his or her former spouse, he or she can apply for a waiver.
Conditional Permanent Resident Status
Not all marital relationships are treated the same under U.S. immigration law.
An immigrant who married his or her spouse less than two years before obtaining permanent resident status through that marriage holds conditional permanent resident status.[1]
If the couple is legally separated before the condition is removed, the spouse subject to conditional permanent resident status may lose his or her legal right to remain in the United States.
The condition placed on those who were married less than two years before obtaining permanent resident status is meant to ensure that the marriage was entered into for the right reasons and not simply for the purpose of obtaining permanent resident status.
This condition can be removed two years after permanent residence is granted and those who hold conditional residence status should file Form I-751 up to ninety days before the second anniversary of their conditional permanent resident status being granted.
Removal of Conditional Status
Conditional status can be removed after two years of lawful residence by a couple jointly submitting a petition requesting the removal of such conditions.
The couple must subsequently appear for a personal interview before an employee or officer of the Department of Homeland Security.
You should consult an immigration attorney for help in the process of removing conditional status.
You begin this process by filing Form I-751, Petition to Remove Conditions on Residence.
If you do not file this form before the second anniversary of obtaining conditional permanent resident status you may be subject to deportation when the conditional status expires.
In order to remove conditional status, the couple must demonstrate that the marriage was legally entered into in good faith and has not been judicially annulled or terminated.[2]
This petition should be filed less than ninety days before the two year anniversary of permanent residence and an interview will be scheduled for within ninety days of the petition filing.
Exceptions
A spouse subject to conditional status may have that condition removed by filing a timely petition jointly with his or her spouse.
If you fail to file Form I-751 before the second anniversary of being granted permanent residence or if you do not file jointly with your spouse, you may be subject to deportation.
However, both timeliness and the joint filing requirements can be waived under certain circumstances.
If a person can show that one or more of the following circumstances applies to him or her, one or both of the filing requirements can be waived:
- Deportation would result in extreme hardship
- You were not at fault in failing to file Form I-751 in time
- The marriage was entered into in good faith but you were battered or subjected to extreme cruelty committed by the U.S. citizen or permanent resident spouse.[3]
The importance of seeking an immigration attorney’s assistance is especially important if you need one of these waivers.
Deportation as a Result of Divorce
A marriage that is legally terminated before conditional status is removed may result in deportation of the recent immigrant.
This law is meant to screen out marriages that were entered into for the sole purpose of being admitted to the United States.
If the Department of Homeland Security determines that the qualifying marriage has been “judicially annulled or terminated” for a reason other than death, the alien spouse may request review by an immigration judge before being deported.
When an immigration judge reviews the decision, the burden is placed on the person subject to deportation who must show that his or her marriage was entered into in good faith.[4]
Evidence which may be considered for the judge’s determination includes:
- Documentation relating to the financial assets and liabilities of the married couple
- Documentation concerning the length of time which the married couple lived together after the marriage and after the immigrant spouse obtained permanent residence
- Birth certificates of children born to the marriage
- “Other evidence deemed pertinent” [5]
If your marriage is legally terminated less than two years after being granted conditional permanent resident status the burden of showing you entered the marriage in good faith will be placed on you.
If you cannot show that you intended to spend your life with the citizen or resident you married you will likely be subject to deportation.
Divorce without Conditional Status
If you obtained legal permanent residence through a marriage which ended in divorce after the condition had been removed or you were married more than two years before obtaining permanent residence, your divorce will not automatically result in deportation proceedings.
Your status as a legal permanent resident will not called into question, but if you apply to be naturalized as a citizen of the United States, your record will be reviewed again and you may be forced to demonstrate that the failed marriage was entered into in good faith.
Conclusion
American immigration law is not written to punish those whose marriages end before death of a spouse.
Deportation will only occur if there is reason to believe a marriage was entered into for the sole purpose of obtaining permanent residence.
[1] 8 U.S.C.A. § 1186a (West 2013)
[2] 8 U.S.C.A. § 1186a (d)
[3] http://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence/remove-conditions-permanent-residence-based-marriage
[4] Boluk v. Holder, 642 F.3d 297 (2nd Cir. 2011).
[5] 8 C.F.R. § 1216.5 (e)(2).
