Publications

December, 2006

DIVORCES

CONDITIONAL RESIDENCE

A good faith marriage should afford conditional residence to an alien spouse when the marriage has not existed for two years. The two year period is calculated counting back from the date residency is bestowed.

The conditional residence may be called back if:

1. The marriage is judicially terminated apart from the death of the U.S. citizen spouse;
2. if the residence application is proved to be a sham;
3. if within the 90 day period before the expiration of the 2 year conditional residence the couple fails to file a joint petition to remove the conditional residence, and requesting that residence be made permanent or the alien spouse has not sought to file a self petition on the basis of a divorce.

The petition to remove the condition must include evidence of indicia of a good faith marriage such as joint ownership of property; a lease with both spouses named in it; common financial interests; proof of joint parenthood; evidence of joint medical policies, etc.

For a party who cannot file jointly, a Waiver may be filed in a case where the U.S. citizen spouse has died; or if the parties have divorced. There are extension procedures available if a divorce cannot be secured within the two year period.

SUBSEQUENT MARRIAGE

A second spousal petition may not be approved for a 5 year period after an alien obtains permanent residence through marriage unless by clear and convincing evidence the alien spouse proves that the prior marriage was not entered into for the purpose of evading the immigration law.

BATTERED SPOUSE

An alien spouse or child may file an independent petition on the ground that he/she has been the victim of extreme cruelty or of having been battered. The proofs required are:

1. that the spouse or child resided with the United States citizen or permanent resident;
2. that he/she was battered or subjected to extreme cruelty;
3. the marriage was entered into in good faith
4. that the alien spouse and the child are otherwise eligible for permanent residence;
5. that the alien spouse and child have a good faith character.

The alien spouse need not still be married when the petition is filed. It is also
permitted that the abused spouse divorce after the petition is filed. A battered spouse may remarry after the self petition is approved. A self petitioning child must be unmarried and under 21 years of age when the petition is filed but the child will not “age out” even if the petition is approved after the child reaches the age of 21. Approved self petitioners are eligible for work authorization and deferred action.

A Waiver based upon extreme mental cruelty must be supported by
substantial evidence. Cruelty includes being the victim of any act or threatened act of violence including forceful detention which results in physical or mental injury. Psychological or sexual abuse or exploitation shall be considered acts of violence.

STEP PARENT DIVORCE

If a step parent-child relationship continues, despite a divorce between the
child’s parent and step parent, the child’s petition remains valid. This is also true for step siblings. An adulterine child born after the termination of the step parent relationship may qualify as a step child. Evidence of emotional or financial ties, communication with the child, and active concern for the child’s instruction and general welfare are evidence of a bona fide relationship.

New York Immigration Lawyers > Immigration Publications > December 2006