A United States citizen or lawful permanent resident can petition to have their spouse immigrate to the United States. The first step of this process is for the U.S. citizen or lawful permanent resident to petition for their spouse by filing an Immigrant Visa Petition (Form I-130 Petition for Alien Relative) and proving the existence of their relationship.
If the Immigrant Visa Petition is approved, then the spouse can either file an adjustment of status petition within the U.S. or consular process an immigrant visa. Consular processing requires that the alien spouse attend an interview at an oversees U.S. consulate office. The adjustment of status process allows the spouse to complete the process inside the United States.
Conditional Status in Immigration Through Marriage Cases
Individuals whose have been married for less than two years prior to their grant of permanent residence are given a “conditional status” green card valid for two years. Within 90 days of the spouse’s green card expiration date, both spouses may file to remove the conditions through Form I-751, Petition to Remove Conditions on Residence. Failure to file for removal of condition will result in termination of permanent resident status for the spouse.
The spouses have the burden of proving that their marriage was entered in good faith (i.e. not for immigration purposes). If U.S. Citizenship and Immigration Services (USCIS) determines that the marriage is fraudulent, the spouse will be placed in removal proceedings and forever excluded from the United States. Requesting permanent residence based upon a fraudulent marriage for the purpose of evading immigration law is a crime.
In cases where the marriage was entered into in good faith, but the spouses separated within the two-year period, USCIS may still allow the parties to file for removal of conditional status. If the parties are divorced, USCIS may exercise its discretion in granting the spouse a waiver to file for removal of conditional status without the other spouse. Grounds for waiver are as follows:
- Deportation would cause extreme hardship to the spouse
- The marriage was created in good faith
- The spouse was a victim of domestic abuse.
Kingston, Martinez & Hogan LLP provides comprehensive immigration assistance to individuals seeking to immigrate based upon relationships with family members, including marriage. Please contact us to see if we can help with your immigration case.