Separated Before Conditional Resident Status Expires

By: Dennis E. Chua, Esq.

The spouse of a US citizen will be granted permanent resident status after the US citizen files a petition for the spouse. If the spouses have not yet been married for at least two years at the time the petition was filed, the spouse shall be only granted conditional resident status by the USCIS. The conditional resident spouse shall enjoy all the benefits and privileges of a permanent resident. They can work and travel without further authorization from the US Citizenship and Immigration Services. The only difference is that the conditional resident spouse’s status will expire two years from the time permanent resident status was granted. This rule was enacted to give the US Citizenship and Immigration Services another opportunity to look into whether or not the relationship between the spouses is a bona fide one.

Prior to the expiration of the conditional status, both the US citizen spouse and the conditional resident spouse must file another application to have the conditions on residence removed.

If the conditional resident status fails to file the petition to remove the conditions on residence, the permanent resident status will be terminated and in some cases, removal proceedings may be instituted against the conditional resident spouse whose status has already been terminated.

Things may not work out between the spouses before the expiration of the conditional status such that the spouses may have already been living separately. The law requires the both spouses must file (unless the US citizen spouse is deceased) the petition to remove the conditions on residence jointly, unless the following can be shown by the conditional resident spouse: (1) the conditional resident spouse entered the marriage in good faith but the marriage was terminated by divorce; or (2) the conditional resident spouse entered the marriage in good faith but the conditional resident spouse was battered or subject to extreme cruelty by the US citizen spouse.

What then happens to a conditional resident spouse whose marriage has not yet been terminated by divorce and was not battered by the US citizen spouse? Since the conditional resident spouse’s marriage has not yet been terminated by divorce, can the conditional resident spouse file the petition without the US citizen spouse signing the joint petition? Based on a USCIS memorandum, USCIS will allow the conditional resident spouse to file the petition even without the submission of the required judgment showing that the marriage has been terminated. The USCIS will however later issue a Request for Evidence giving the conditional resident spouse around 87 days to submit the divorce decree. Should the conditional resident spouse fail to submit the divorce decree within the time period given by the USCIS, the petition to remove conditions on residence will be denied by the USCIS. The conditional resident spouse will however have another opportunity to present the divorce decree before an immigration judge should removal proceedings be instituted against the conditional resident spouse. If the marriage between the conditional resident spouse and US citizen spouse can no longer be salvaged, the conditional spouse might have to file a divorce petition right away to have the conditional resident status removed in a timely manner.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; dchua@ctvattys.com.