As I stated last week, in order to file a Petition to Remove the Conditions on your Conditional Residence, you must have both the husband and wife sign it and it must be filed within the 90-day period before your two-year Green Card expires.   If you cannot file within that time period, you need a waiver.   If you file late, you need to show that you had good cause to file late — forgetting to file is not “good cause”.  You do NOT want to file late — it is difficult to establish good cause.

If you are divorced you can request a waiver of the requirement for joint filing by showing that you are divorced and it was not your fault.  It is not too difficult to establish this reason for a waiver unless you really were to blame.   They generally do not call in your ex-spouse to testify against you, but they could if they thought that you were lying.  If you are divorced, as stated above, you will need to be sure to provide plenty of evidence that your intention when you got married was to have a genuine life together.

If you are not divorced, but your spouse will not cooperate with you and refuses to sign the petition, then you need to request a wavier claiming that you will suffer exceptional hardship if you are forced to leave the U.S.   This is a difficult situation.  It is not easy to establish that you will suffer exceptional hardship.   But, unfortunately, this is the only option for a person who is going through marital difficulty but wants to try to reconcile and does not want a divorce.   This rule actually punishes people who do not want a divorce because getting a divorce makes it easier to get a wavier than if you stay married.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Last week I discussed Conditional Residence.   It is just a Green Card, but with a twist — it is only valid for two years.   Then in order to extend it you need to remove the Conditions.  To do this, you need to file a special petition with the USCIS requesting them to approve the removal of the conditions.    This petition must be filed in the 90-day period immediately before your 2-year Conditional Residence card expires.   The petition must be filed jointly — both husband and wife must sign it.

Most people think that the purpose of this petition is to prove that you still have a relationship.   That is not actually correct.   It doesn’t matter if you still have a relationship at the two-year mark.   You could be divorced.  You could be separated.   That doesn’t really matter as to the point of the two-year petition.   The point of the two-year petition is to establish that when you got married two or three years ago, you meant it at that time.   However, if you are separated or divorced, the USCIS will most likely look at your evidence very closely to see if possibly the marriage was not entered into in good faith.

When you file this petition, you include whatever relationship evidence you can.   Joint bank or credit card accounts, jointly-filed tax returns, joint leases or deeds, joint utility bills, joint car titles, insurance policies covering both of your, social media postings, and pictures.  As I said, the purpose is not to show that you are still together.  The USCIS’ logic is that if you really meant to live together when you got married, you would have combined your life in the period after the wedding — relationally and emotionally, but also financially.  As I tell my clients — “money talks”.   What you do with your money shows your priorities in life.  The USCIS figures that a person who trusts his spouse with his bank account and his credit card account, must really be committed to that person.

If the petition is filed within that 90-day window, the USCIS will issue a receipt notice that extends the validity of your expiring green card for 18 months to give them time to process this petition.   They do not give a lot of priority to this petition because you already have your green card and are already here living and working in the US.   The extended validity receipt notice allows you to continue living and working here for another 18 months so they figure that they have a lot of time to finish processing the petition.

They are not completely correct in that it is no hassle for you to wait for your approval.   It is true that legally, having your expired green card and the Receipt Notice extending your green card is the same thing as having a currently valid green card, but try telling that to a person who is looking at your expired two-year green card and wondering whether or not they can trust this green piece of paper saying that your expired two-year green card is still valid.   I have never heard of someone actually getting denied entrance to an airplane or employment or something, but I have heard people tell me that they have had people hesitating to accept this document, wondering if it really is valid.

One other aspect where this delay is a problem.   You can apply for citizenship once you have completed 2 years and 9 months after first getting your green card.  It is not unusual for you to still be waiting for your Petition to Remove the Conditions on your 2-year green card to be approved.  Technically, you can apply for citizenship while you are still waiting for the ten-year green card to be approved.  However, I have run into problems with USCIS officers who delay things because they don’t like it that you filed before you actually got your ten year green card.

Finally, eventually, the new green card will come.  It will come valid for ten years.   At the end of those ten years you will need to file for a new green card if you have received your citizenship.   However, the green card extension application is relatively easy compared to the earlier applications and petitions.

Next week I want to look at waivers and processes that you need to take if you are unable to file within that 90 day window before your two-year green card expires or if you are divorced.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong