Effect of failed marriage on conditional US resident

Obtaining an immigrant visa based on marriage to a US citizen may be the quickest way to immigrate but it may not be the easiest way to maintain such status.

There are serious consequences for marriage fraud including permanent bar from receiving future immigration benefits.

What happens to an immigrant spouse in case of a failed marriage? Considering the two-year “conditional” resident status, will the immigrant spouse be forced to live with the US citizen spouse for that period of time to avoid falling out of status?

A reader sent us this e-mail:

“I currently reside in Alaska and I was able to get my green card through my husband’s petition. I was married in October 2012 and immigrated to the US in May 2014.

The immigration service issued a ‘conditional’ status and my green card will be expiring in 2016. My husband and I do not get along and we always have arguments.

I am no longer happy in my marriage and I feel that we will be divorced soon. My closest friend advised me that I need to stay in the marriage until my conditional status is removed.

I am not sure if I can hang on for that long. I feel so miserable especially since my husband petitioned my own daughter.

Is there anything else we can do or should we just return to the Philippines and continue with our lives without him?”

—E.H.

Marriages of less than 2 yrs

Those who obtained their green cards through marriages of less than two years are issued conditional resident status for two years.

Before the two years end, the conditions must be removed by showing proof that the marriage was entered into in good faith.

This provision of the Immigration and Nationality Act was enacted to discourage marriage fraud.

If there is no proof of a good faith marriage or if the spouses have separated or are divorced and no waiver has been submitted, the conditional resident status will terminate and the petitioned spouse will be placed in removal/deportation proceedings.

Failed marriages vs fraudulent marriages

While the law was intended to prevent fraudulent marriages, it also covers situations where the couple’s relationship is no longer viable.

In cases of failed marriages or valid marriages from inception, the immigrant spouse may file for a “waiver” of the joint filing of the petition to remove conditions.

If a good faith marriage is established from inception, despite the subsequent separation of the couple, the conditions on the immigrant status may still be removed.

A divorce decree is a necessary requirement when an immigrant spouse alleges good faith marriage as basis for the waiver. Either party to the marriage may file the divorce.

Contrary to the erroneous advice given to the letter writer by his friend, she may now live separately from her spouse and file for divorce.

There is no compulsion to live with a US citizen spouse in cases of failed marriages specially where the other party is an abusive spouse.

(The author may be reached at [email protected], facebook.com

/tancincolaw, www.tancinco.com or [02] 721-1963)