Divorce After the Issuance of a Conditional Green Card

Aliens who obtain their permanent residence based on their relationship with a U.S. citizen spouse or step-parent are granted conditional permanent residence if the qualifying marriage took place within two years prior to the date permanent residence was conferred. Conditional permanent residence means that the permanent residence is subject to termination if it is found that the qualifying marriage was a sham marriage or a marriage that was entered into only for purposes of obtaining an immigration benefit. Other than the conditional permanent resident being subject to having his/her status terminated for this reason, he/she is afforded the same rights as is any other permanent resident. Within ninety days prior to the two-year anniversary of the permanent residence being granted to the alien, the alien and spouse must apply to have the condition removed.

When permanent residence is granted conditionally to an alien spouse, that conditional permanent residence may be terminated within two years from the date permanent residence was granted if the marriage has been terminated through divorce. This rule also applies to the child of the alien spouse who obtains his conditional permanent residence based on the marital relationship of his parent. In other words, the general rule is that divorce terminates conditional permanent residence. Nevertheless, in this scenario, it is possible for the alien to obtain a waiver of the termination. A waiver of the termination is granted to the alien if the alien can show that the marriage was a union in good faith and the alien was not at fault for his failure to file the joint petition to remove the condition. Generally speaking, when the conditional permanent resident can show that the marriage was entered into in good faith, it is presumed that he was not at fault for failing to file a joint petition. Two ways to show that a marriage was entered into in good faith are proving that the couple had a child together and producing evidence that the couple owned property jointly.

(Updated 10/4/2012 by AG)

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