The two-year conditional status attached to spousal petitions could be a most difficult experience if the marriage falls apart before the lapse of the two-year anniversary of the issuance of the green card. But it is not without recourse.
The two- year conditional status is imposed on alien spouses who marry U.S. citizens and apply for green cards when their marriage is less than two years old. Immigration law requires the couple to stay married for two years before they are given permanent status (10-year green card). Thus, they are on a “conditional status” during the two-year period of their marriage (Immigration Marriage Fraud Amendments of 1986 [IMFA]).
Two people finding love for each other in a strange country such as the United States discover that when the pressures of everyday existence start to erode their relationship, the bond that first brought them together starts to break. They don’t even have to talk because everyone is busy making a living.
Before they know it, they have drawn apart. They have made progress in their respective jobs, and their home and cars are the best in the market but they find themselves on the verge of a divorce! They have tried marriage counseling but failed, and it is time to file Form I-751 or “Petition to Remove Conditions on Residence” for the alien-spouse.
This is usually applied for jointly by both husband and wife, meaning both the U.S. petitioner-spouse and alien-spouse, presuming they are still together and married. This is the most ideal scenario. Together with the application, the couple submits evidence of their union such as but not limited to proofs of their joint ownership of personal and real property purchased together, utility bills both in their names, joint bank account statements, joint credit card statements, pictures taken together, joint income tax return files, to name a few. However, if the couple starts divorce proceedings before Form I-751 is filed, what would happen?
This is when a divorce waiver or a “good faith waiver” is filed. The alien-spouse can still file Form I-751 but he/she will have to sign it alone. The alien-spouse can still submit the same evidence of joint ownership of assets acquired or bank statements, etc. IMFA has recognized that not everyone is lucky to be married for a long time and that some marriages do not work despite the promise of stability and longevity of the union at its inception.
The most important standard to consider in this particular waiver is the sincere intent of the parties to build a life together as husband and wife when they got married. Meaning, the alien-spouse has to emphatically prove that their marriage was true from the very start and it was not entered into to circumvent immigration law. It was entered into sincerely with the hope of a happy ending.
The alien-spouse must prove that they intended to build a life together from the very start. It is going to be an uphill battle but it can be done. In Cho v. Gonzalez, (404 F.3d 96 ), the court regarded the following as a legal standard to determine whether the marriage entered into is in good faith, i.e., “whether, at the time of the marriage, there was an intent to establish a life together.” What is important is an assertion that that marriage was entered into in good faith which marriage ended in divorce and that such marriage was not entered to circumvent and violate any immigration law.