Green Card Despite "Fixed Marriage"?

by Michael J. Gurfinkel

Recently, the 5th Circuit Court of Appeals (which is one court below the U.S. Supreme Court) held that an alien is not required to demonstrate a “good-faith” marriage in order to obtain an “extreme hardship” waiver of the requirement to file a joint petition to remove the conditional basis of an alien’s green card. In other words, an alien who married a U.S. citizen and got a conditional green card, may still be able to remove the conditions on that green card even if the USCIS later determines that the marriage was “fixed”.

In that case, an alien had married a U.S. citizen and obtained a conditional-resident green card, which is valid for only 2 years. Within 90 days of that two year period, the alien and the American spouse were supposed to file a “joint petition’ in order to remove the conditions, and the alien would get a full, unrestricted green card.

However, the marriage did not work out, and the alien and the American got divorced. Although a joint petition is supposed to be filed, the law also allows exceptions to the joint petition requirement in three separate and distinct circumstances:

1.) Extreme hardship: “Extreme hardship would result if such alien is removed [deported]”
2.) Good faith marriage: “The qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated . . . and the alien was not at fault in failing to meet the requirements [of filing a joint petition]” or
3.) Extreme cruelty: “The qualifying marriage was entered into in good faith by the alien spouse and during the marriage, the alien spouse . . . was battered . . . or was the subject of extreme cruelty”.

The alien argued that while the second and third exceptions (good faith marriage and extreme cruelty) included the requirement that the qualifying marriage “was entered into in good faith”, the extreme hardship exception contained no such requirement. Accordingly, the Court held that, “we find that the statutory language unambiguously does not require a good faith marriage to qualify for an extreme hardship waiver”. Therefore, although the USCIS, the immigration judge, and the Board of Immigration Appeals all denied her waiver based on her having entered into a fixed marriage, the Court of Appeal remanded (sent back) the case in order for the alien to be given the opportunity to demonstrate “extreme hardship” if the alien was removed/deported.

Although this case gives people with fixed marriages some hope, I do not want anyone to think that this case somehow makes it “OK” to enter into a fixed marriage. Fixed marriages are against the law, and could result in a “lifetime ban”. In addition, even though this alien may be eligible to apply for an “extreme hardship” waiver (notwithstanding a fixed marriage), the USCIS, at its discretion, could still decide that the alien would not suffer extreme hardship, which would then result in the case being denied and the alien removed/deported.

That is why I always advise that if you’re going to marry, you better marry for love. You will be interviewed and possibly questioned separately from your spouse and your answers will be compared. However, if you have previously been denied an extreme hardship waiver, based on there being a fixed marriage, this case could still provide the opportunity for you to demonstrate “extreme hardship”.

That is why I advise if you have been previously denied, you seek the advice of a reputable attorney, who can analyze your denial, and see if a good faith argument could be made with respect to your bad faith marriage.

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