Sham Marriage in Land of the Free
Dear Attorney Sean Hayes: I am a Korean wife of an American contractor who wants to divorce me. I have a conditional permanent residency based on marriage that allows me to stay in the U.S. I am concerned that after divorcing I will lose my permanent residency. Can I get divorced and retain my permanent residency if my husband doesn’t sign a petition to remove the conditions on residency? Concerned in Seoul
Dear Concerned: The Legal Permanent Residency (LPR) status, based on marriage, must be based on a bona fide or good faith marriage. In order to assist immigration to determine that the marriage is bona fide, Congress wrote a special provision in the law that makes the LPR status based on marriage “conditional’’ for the first two years of marriage.
Before the end of the two-year conditional period, the couple must file a request to have the condition removed and must present evidence to show that they are truly married, and not involved in a sham marriage.
To satisfy this requirement, normally, both the husband and wife file an I-751 “Joint Petition to Remove the Conditions on Permanent Residency’’ with evidence that the marriage was not to evade U.S. immigration law. Such evidence may include leases showing that you and your spouse live in the same place, documents that prove you and your spouse own property together, and birth certificates of your children.
However, if a spouse refuses or is unable to sign a joint petition, the immigration service may grant a waiver. Waivers are normally approved if your spouse died, your spouse physically abused you, your spouse subjected you to extreme cruelty or you entered into marriage in good faith, but the marriage simply broke down. Evidence to prove mental or physical abuse may include police reports, medical records, and statements from psychiatrists. Evidence to prove that your marriage was entered into in good faith includes evidence that you lived together, shared a bank account, your spouse sponsored you for a military ration card, you had children together, you were close with your spouses children and other obvious situations based on your personal situations.
To grant a waiver the immigrations services will require an interview. If you can substantiate your grounds for filing a waiver the immigration service will ordinarily grant the waiver, thus insuring permanent residency. If a lawyer is employed, the process often goes very smoothly.
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