Bender's Immigration Bulletin, Vol. 14, p. 982, 2009 Posted : 24 Aug 2009 Jean Pierre Espinoza Espinoza Law Offices P.A.
Current immigration law establishes that conditional residents divorced could remove the conditions on their LPR status but people not divorced but separated could not. What is the public policy behind banning people separated but not divorced from applying for a waiver for bona fide marriage, when divorced people could do so? How is such a public policy justified, considering that the law requires only evidence that the marriage was entered in good faith, and the immigrants, whether separated or divorced, could prove that the marriage was bona fide? This article analyzes the USCIS’s treatment of the I-751 application for removal of conditions for people who are neither happily married nor divorced. Part II provides a background of basic concepts such as conditional residency, its antecedents, how and why it was created, the law regulating conditional residency, how to remove the conditions, and the waivers available. Part III focuses on the waiver for bona fide marriage, its requirements, and the situation of people unable to apply for it because they are neither joint petitioning, nor applying for the bona-fide-marriage waiver. Part IV analyzes a hypothetical case. Finally, Part V analyzes the public policy behind forbidding separated, non-divorced people from using the waiver for removing the conditions on their LPR status.