Under the Marriage Fraud Act, all persons whose petitions for lawful permanent residency are based on marriage to a U.S. Citizen must be issued conditional lawful permanent residency. The conditional residency that is issued is valid for a period of two years. Prior to expiration of the conditional green card the LPR and his or her spouse are required to filed a joint petition to remove the conditions on LPR's residency. The purpose of this process is to prevent or discourage fraudulent marriages that are entered into for the sole purpose of obtaining a green card.

In an effort to root out the fraudulent marriages, the removal of conditions process requires that the applicants show that the marriage is still valid and is a valid and bona fide marriage. In order to establish this, applicant couples are required to provide evidence which establishes that they have been living together as husband and wife. Such evidence includes birth certificates of children born to the marriage, statements of joint bank accounts, and copies of jointly filed tax returns.

In most cases, this process if fairly routine but problems can arise in cases where the couples are separated, divorced, estranged, or cannot produce sufficient evidence to prove that they have been living together as husband and wife.

Because the petition must be filed jointly, a conditional lawful permanent resident who has been divorced, is separated, or is estranged from his or he spouse will not be able to satisfy the joint filing requirement. Fortunately, there are waivers available for the joint filing requirement that are available to conditional lawful permanent resident applicants in certain situations. However, these cases are serious matters as a conditional LPR who fails to file his or her petition to remove the conditions on residency, cannot meet the joint filing requirement and/or obtain a waiver will not be able to obtain a permanent green card and will be required to leave the U.S.

If you are facing a situation where you may not be able to meet the joint filing requirement it is critical that you consult with a qualified immigration attorney.