Immigrant spouses of U.S. citizens who have not been married to a U.S. citizen for at
least 2 years and who have received provisional residence for 2 years may self petition when
their conditional residence expires even though they have separated or been divorced from their U.S. spouses. The self petitioner has the burden of proof to show that the marriage was conceived in good faith. Evidence to prove this would include joint leases, joint bank accounts, joint tax returns and mutual photos, as examples.
The self petition is to Remove Conditions on Residence based on a marriage to a U.S. citizen or a permanent resident. This petition must be accompanied by proof that the marriage was terminated through divorce or annulment. Usually Immigration will require an interview to establish that the marriage was entered into in good faith. The petition cannot be denied solely because the marriage is not still viable, as for example, the parties have separated. Solely the issue for the Immigration Service is to verify that originally the marriage was not fraudulent.
BATTERED IMMIGRANT SPOUSE
A battered immigrant spouse who entered the marriage in good faith with a U.S. citizen or permanent resident and during the marriage he/she was battered or was the subject of extreme cruelty by the American spouse or permanent resident may obtain permanent residence without a joint petition and by credible evidence of the battering or extreme cruelty. In this instance, a divorce is not required.
Any act or threat resulting in intentional physical or mental injury to the victim who is the spouse of a U.S. citizen or permanent resident may assist the case.. Psychological or sexual abuse or exploitation are considered acts of violence. Also the Immigration is charged to maintain the confidentiality of this complaint.
DEATH OF THE U.S. SPOUSE
If a U.S. citizen or permanent resident petitioner dies during the two year provisional residence period, a joint petition is not required. Still the petitioner must prove that the marriage was conceived in good faith and was not entered into for the purpose of procuring the immigrant’s admission. Conditional resident applicants may by self petition apply to change to permanent residence within 90 days of the expiration of the two year period. If this is not possible, a Waiver may be obtained before during or after the 90 day period. The Waiver petition would extend the immigrant’s status until the Self Petition is adjudicated. The applicant is also able to receive a stamp in his/her passport for one year pending a decision of Immigration.
This stamp would enable the recipient to travel outside the U.S. while it is viable. The Immigration Service may also waive an untimely filing for good cause and extenuating circumstances, but the applicant should give a written explanation for the failure to timely file a request.
SELF PETITION BY CHILD OR PARENT
Aside from a spouse, a child or parent who has been subjected to battering or extreme cruelty by a U.S. citizen or permanent resident may Self Petition as well. The child or parent must show that he/she has resided with the U.S. citizen or permanent resident and was battered or subjected to extreme cruelty. For the child this proof does not require that the marriage of the parent was bona fide or that the extreme cruelty occurred during the marriage. The child must be unmarried and under 21 when the application is filed, but then the papers would still be acted upon even though the child becomes over 21.
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