Removing Conditional Status Jointly or Individually
By Anish Vashistha
Los Angeles , CA
Pakistani nationals who marry United States citizens and are granted Lawful Permanent Resident Status, or a Green Card, based on that marriage are given such status for only two years if granted before the second anniversary of the marriage. This is true regardless of whether the Pakistani national obtains an immigrant visa abroad or enters the United States in some other status and applies for the Green Card thereafter.
To extend the validity of the two-year Green Card, most foreign nationals are told that they and their respective spouses are required to file a joint petition during the ninety days prior to the expiration of the Green Card. The purpose of the joint petition is to prove to United States Citizenship and Immigration Services (USCIS) that the marriage is still intact and therefore was not the product of a fraudulent scheme simply to obtain a Green Card.
However, what happens if the marriage breaks down prior to the filing of or during the processing of the joint petition? Such an occurrence, though not always foreseen, is quite common. Despite this prevalence, many foreign nationals in a panic attempt to file the petition jointly, asking their respective United-States-citizen spouses to maintain the appearance of a normal marital relationship when the relationship in reality is anything but normal. Sometimes the couple is able to maintain such an appearance, but USCIS has become more adept in recognizing broken marriages through more savvy officers, more access to residential and employment records, and more stringent requirements for proving an ongoing marital relationship.
Despite this risk and probably through the fear of what would occur if a timely joint petition is not filed regardless of the state of marital relationship, many foreign nationals place themselves at greater risk and attempt to have approved the joint petition. The risks are not simply from USCIS, which could make a finding not only that the marriage is no longer intact but also that the foreign national committed fraud. The foreign national also places himself/ herself at the mercy of the United-States-citizen spouse who can use the pendency of the joint petition to abuse and/ or to control the foreign-national spouse. If the foreign-national spouse does not submit to this abuse and/ or control, the United States citizen spouse can communicate to USCIS that the marriage is no longer intact or, worse, was fraudulent from the beginning, knowing that there is very little likelihood that any type of punishment will be inflicted against a United States citizen.
To avoid placing themselves in such legal, physical, and psychological jeopardy, Pakistani nationals in broken marriages should seek other legal means for removing the conditional status of their Green Card. USCIS permits foreign nationals to file for a waiver of the joint-petition requirement at any time, whether before or after the normal ninety-day window, if certain factors are met. Such waivers are routinely granted by USCIS but oftentimes require more documentation and/ or explanation than a normal joint petition. Therefore, professional legal advice is recommended before pursuing such a waiver. (The author is a licensed attorney with a nationwide immigration-law practice. He is a graduate from Georgetown University Law Center and Georgetown University’s School of Foreign Service. He has helped several Pakistani nationals obtain or maintain legal status in the United States. He may be contacted toll-free at 1 (866) 433-7016)