Bona Fide Marriage Waiver

Conditional residence is given to an applicant that is applying for permanent residence through a spouse, and the marriage is less than two years old.  A conditional resident has all the benefits of a permanent resident, except that the conditional resident will receive a green card valid for two years, not ten.  Before the conditional green card expires, the conditional resident must file to remove the condition on the residence, and then obtain a green card valid for ten years (Form I-751).

There are several grounds upon which one is eligible to remove a condition on a residency: 1) the applicant is still married to the original petitioner after two years; 2) the applicant is widowed and entered into the marriage in good faith; 3) the applicant is now divorced, but the marriage was entered into in good faith; or 4) the applicant or the applicant’s child were battered or subjected to extreme hardship by the petitioner.  Upon filing the I-751, USCIS will send the resident a receipt notice that automatically extends the green card for a year.

The bona fide marriage waiver are for those conditional residents whose marriage does not work out.  In essence, the applicant must show that the marriage was initially entered into in good faith, and not only for the green card.  This application can be difficult for a number of reasons.  First, couples will sometimes only be separated, but not divorced at the time of filing the I-751.  Or, the divorce may have been filed but not finalized.  Then, there is also the issue of when to file the I-751.  Although a conditional resident is required to file within 90 days of the expiration of the green card, it can also be filed at a later time, if necessary.  Having a good strategy is the best way to navigate through this process.

If the I-751 filed based on a bona fide marriage waiver is denied by USCIS, USCIS will terminate the residency and initiate removal proceedings.  The conditional resident will then have the opportunity to renew the I-751 in front of a judge.  In essence, the conditional resident has two chances to get the I-751 approved.

Although not all marriages are forever, a green card can be.  However, it is imperative that you speak to an experienced attorney to advise you of the right path for you.

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