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:
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.
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.
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:
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 â€œage outâ€ 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
childâ€™s parent and step parent, the childâ€™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 childâ€™s instruction and general welfare are evidence of a bona fide relationship.
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