BY: David A. Barnett Esq.
Dear Mr. Barnett:
My wife recently received a conditional green card from the Immigration and Naturalization Service which is good for two years. Please explain to me Why our permanent residence was only granted on a conditional basis and secondly, how and when may that conditional status be removed.
Darlajit Singh
New York, New York
Dear Mr, Singh:
Under the Immigration Marriage Fraud Amendments of 1986, aliens who immigrate based upon marriage to United ‘States Citizens or lawful permanent residents will obtain permanent residence status in the United States only on conditional basis, This applies to alien spouses who are immigrating from abroad or who apply for adjustment of status and whose marriages have been less than two years in duration at the time the immigrant visa (green card) is issued. Final approval is essentially conditioned on the viability of the marriage for two years. $Em During the 90 day period preceding the second anniversary of conditional status, the Immigration and Naturalization Service requires the couple to jointly petition the District Director to remove the conditional status, It is important to note that the Immigration Service will not notify the beneficiary of the conditional resident status and that it’s the beneficiary’s own responsibility to initiate the appropriate forms for the removal of the conditional status. The couple will be interviewed within 90 days of that petition and must establish that the marriage was legal. That it has not been terminated, that it was not entered into solely for immigration purposes and that no fee was given for filing the immigration petition. If all three requirements are not met, or if the timely petition for removal of conditional status is not met, deportation proceedings will be initiated. In fact, if the Immigration and Naturalization Service discovers that one of the requirements has not been met during the two year conditional period, deportation proceedings can be initiated against the alien spouse.
Conditional status may also be removed, as a matter of discretion, when the alien’s deportation would result in extreme hardship or when the alien’s deportation would result in extreme hardship or when the marriage was entered into in good faith but has been terminated by the alien spouse for good cause. The good cause waiver would seen appropriate when the alien spouse is a victim of domestic violence. A situation not addressed by the Marriage Fraud involves a case where the couple is separated but not divorced and there is a reasonable likelihood that the marriage may survive with counseling or other means of reconciliation. As a matter of public policy, it seems unlikely that Congress would be inter As a matter of public policy, It seems unlikely that Congress would be Interested In forcing anlagen to rush to the divorce court simply for purposes of complying with the marriage fraud act and thereby destroy what might otherwise be a viable marriage. Indeed, | am currently litigating several similar situations and have been considerably successful In having such types of situations app roved by the District Director.
What is needed, however, is congressional legislation to fill the gap for such situations. One Important point to note that the two year conditional status will not be granted to aliens who enter into marriages during the pendency of deportation exclusion proceedings. Such last-minute eleventh hour marriages are no longer available under the new Marriage Fraud Amendment of 1986 and in those circumstances, the Allen must reside outside the United States for two years before being able to benefit from the marriage.
Notwithstanding the above, where a couple were considering a bona fide marriage prior to the Initiation of deportation proceedings, under current law, it might be advisable for the alien spouse to accept an order of voluntary departure If subject to deportation and then have the petitioning spouse file a Flancee visa on behalf of the allen spouse which under such circumstance would not be barred by the two year requirement.
Anyone wishing to dis cuss these matters In more detail, or any other Immigration related problem, may contact David A. Barnett, Esq., of the law firm of Frenkel & Hershkowltz, P.C. at 319 Fifth Avenue, New York, New York 10016, (212) 679 4666 for a free consultation. You may also send written questions to the above ad dress. Responses will be published in subsequent Issues.
Article extracted from this publication >> November 10, 1989
