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Separation or Divorce during Conditional Residence

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Separation or Divorce during Conditional Residence

Due to the series of calls and inquiries generated by my previous article, I believe it is necessary to inform about the situation of those persons who acquire Conditional Residency for 2 years because their marriage to an American Citizen or Permanent Resident (who is not a national of Cuba) is less than 2 years at the time the Residency is granted.

The Law establishes that the Conditional Resident who remains married to the person who filed the family petition must apply to Immigration for the Residency to be changed to a Permanent Residency. This application must be made jointly by both parties and must be filed within 90 days prior to the expiration of the Conditional Residence. The penalty for failure to do so is the most severe: deportation.

What happens if within those two years the marriage ends?

Many people think that within this two-year period the couple cannot divorce since it jeopardizes the award of Permanent Residence. The Law does not establish a prohibition of this magnitude, much less does it encourage, nor does it intend that the couple remain together when in reality there is no longer a desire to live as a couple.

The Conditional Resident may apply for a permit to change to Permanent Resident without the need for the spouse to also sign the application, as long as both are divorced by a final judgment proving it. It is not necessary to do so within 90 days prior to the expiration of the Conditional Residency, although it is advisable to do so within this period.

In addition to the divorce or annulment decree, the Conditional Resident must present evidence that the marriage was entered into in good faith and for the purpose of entering into a life together.

What if we are just separated?

In order for the Conditional Resident to file the petition on his or her own, he or she must be divorced, unless the separation is due to substantiated physical or emotional abuse of the Conditional Resident, in accordance with the protections provided by the Violence Against Women Act (VAWA). Although the name of the law does not indicate it, the protection also includes male victims of abuse. If within 90 days prior to the expiration of the conditional residency a divorce proceeding has been initiated, the conditional resident must file an application and request that a longer period of time be issued to reach the divorce decree issued by the judge.

¡Mucho Cuidado!

Cuídese de los notarios, consultores en inmigración o cualquier persona no calificada y preparada en estos temas. Siempre busque la asesoría y los servicios de un abogado de inmigración para sus procesos y trámites migratorios.