Marriage Cases

In 1986, Congress revised the rules for immigration through marriages because of the problems with fraudulent marriages. This rule places a two year "conditional status" on those who marry a U.S. citizen or permanent resident. However, this status only applies to individuals whose marriages were created less than two years prior to his/her grant of permanent residence. If, for example, a foreign national marries a U.S. citizen in August 1994, the alien may enter the U.S. as a permanent resident without the conditional status once the visa is issued.

At the expiration of the two year period, both spouses may file a petition to remove the condition. Failure to file for removal of condition will result in termination of permanent resident status for the alien spouse. It is the spouses who have the burden of proof to show the INS that the marriage was entered in good faith (i.e. not for immigration purposes). If the INS determines that the marriage is fraudulent, the alien spouse will be placed in deportation proceeding. Marriages which are entered into for the purpose of evading immigration law is a crime. Conviction of marriage fraud may result both spouses in fines up to $250,000 or imprisonment up to five years. In addition, the alien spouse may be forever excluded from the U.S.

In cases where the marriage was entered into in good faith, but the spouses separated within the two year period, the INS may still allow the parties to file for removal of conditional status. If, however, the parties are divorced, the INS may exercise its discretion in granting the alien spouse a waiver to file for removal alone. Grounds for waiver are as follows:

• Deportation would cause extreme hardship to the alien spouse;
• The marriage was created in good faith;
• The alien spouse was a victim of domestic abuse.