When a foreign national marries a US citizen they are allowed to apply for permanent resident status in the US but if the couple has been married for less than 2 years, the foreign national will be granted Conditional Residency. Conditional Residency is basically for two years. When the foreign national spouse receives conditional residency, both spouses must submit a joint petition to the USCIS to remove the conditions on the residency i.e. I-751. The US Congress established the conditional residence period to combat a perception that many foreign nationals were using marriage to gain permanent residence in the US. At the end of the conditional period you have to verify to the USCIS that the marriage was entered into in good faith and not for immigration benefits alone, i.e., you have to prove that you did not get married to evade the immigration laws of the United States. Once your petition is approved, you will be granted a 10-year permanent resident card.
Conditional Residence – What is it all about?
Because of the perception of a high incidence of marriage fraud Congress established the conditional residence period. At the time a foreign national obtains conditional resident status through admission to the United States with an immigrant visa or through adjustment of status, the USCIS will notify you of the conditional basis of your status, and the requirements for removal of the conditions. The notice should include a statement of what will happen if you fail to file a petition to remove the conditions. The USCIS does not send a second notice at the end of the conditional period to conditional residents to remind them to file the petition for removal of conditions.
During the 90 days before the second anniversary of the date you obtained conditional resident status you and your spouse (if still married) must file to remove the conditions. You must file a Form I-751, Petition to Remove the Conditions on Residence, with the USCIS. All petitions should be sent to the Service Center that serves the area where you live. Failure to file will result in loss of your permanent resident status. Late filings are permitted with sufficient explanation of the reason(s) for being late in filing.
The I-751 has two purposes. The I-751 is used as a joint petition for the immigrant and the U.S. citizen (or lawful permanent resident’s spouse) to petition for the removal of the condition. The I-751 is also used as an application for the immigrant to apply for a waiver of the requirement to file the joint petition.
Who is Eligible?
You may apply to remove your conditions on permanent residence if:
- You are still married to the same US citizen or lawful permanent resident at the end of the two year conditional period (your children may be included in your application if they received their conditional resident status at the same time as you, or within 90 days).
- You are a child and cannot be included in the application of your parents
for a valid reason.
- You are a widow or widower of a marriage that was entered into in good faith.
- You entered into a marriage in good faith, but the marriage was ended through divorce or annulment.
- You entered into a marriage in good faith, but either you or your child
were battered or subjected to extreme cruelty by your US citizen or lawful
permanent resident spouse.
- The termination of your conditional resident status would cause extreme
hardship to you.
Process for Removal of Conditional Residence Status:
If you are still married to the same person your adjustment of status was based on, you must file a joint petition with your spouse to remove the conditions on your permanent residence. The , Form I-751, Petition to Remove the Conditions on Residence, signed by both you and your spouse, together with a copy of your Permanent Resident Card is submitted to the USCIS Service Center with jurisdiction over your place of residence. In addition to the petition and copy of your green card you also need to submit evidence of a valid marriage.
The best evidence is proof that you have intermingled your finances: documents such as leases showing that you and your spouse live in the same place, documents that prove that you and your spouse own property (real or personal) together, proof of joint bank accounts, proof of credit cards in both names, insurance in both names, etc. One of the best sources of proof that you did not get married to evade US immigration laws is birth certificates of children born to the two of you.
In cases involving termination of the marriage other than by death of the spouse, in addition to the above documents, you also need to submit copy of your divorce or annulment decree, and, if applicable, evidence that you were not at fault in failing to file the petition on time. If the petitioner/applicant is a widow or a widower, in addition to the above they also need to submit their US citizen spouse’s death certificate.
Foreign national children (step-children of the US citizen) filing separately
from their parent(s) to remove the conditions on their permanent residence also
submit a Form I-751, Petition to Remove the Conditions on Residence, together
with a copy of their Permanent Resident Card, and a written explanation of why
they are filing separately from their parent(s), and any supporting documentation.
Let’s now recap the requirements for the Removal of Conditional Residency.
- You and your spouse must apply together to remove the conditions on your
residence. You must apply during the 90 days before the second anniversary
of receiving status as a conditional resident. The expiration date on your
alien registration card (commonly know as green card) is the date of your
second anniversary as a conditional resident. If you do not apply to remove
the conditions in time your conditional resident status will be terminated,
and you can be removed from the country.
- If you are no longer married to your spouse, or if you have been battered
or abused by your spouse, you can apply to waive the joint filing requirement.
In such cases, you may apply to remove the conditions on your permanent residence
any time after you become a conditional resident, but before you are removed
from the country.
- If your child received conditional resident status within 90 days of when
you did, then your child may be included in your application to remove the
conditions on permanent residence. Your child must file a separate application
if your child received conditional resident status more than 90 days after
you did.
What happens if I am late in Applying to Remove the Conditions on Residence?
If you fail to timely file the Form I-751 within the 90-day period before your
second anniversary as a conditional resident, your conditional resident status
will automatically be terminated, and the USCIS will order that removal proceedings
be started against you. At this point you will receive a notice from the USCIS
advising you that you failed to remove the conditions from your residence, and
you will also receive a Notice to Appear at a deportation hearing. At the hearing
you may review and rebut the evidence against you, including filing a Form I-751,
if you have a valid reason for failing to timely file. You are responsible for
proving that you complied with the requirements of the law, i.e., the USCIS
is not responsible for proving that you did not comply with the requirements
to remove the conditions.
The Form I-751 can be filed after the 90-day period. You have to submit a written
statement to the director of the Service Center to prove that there was good
cause for failing to file the I-751 petition on time. The director has the discretion
to approve the petition and restore your permanent resident status.
How Can I Get a Waiver of the Requirement to File a Joint Petition?
As noted above, if you are unable to apply with your spouse to remove the conditions
on your residence, you may request a waiver of the joint filing requirement.
(Note: You may request consideration of more than one waiver provision at a
time.)
You may request a waiver of the joint petition requirement if:
- You entered into your marriage in good faith, and not solely to evade US
immigration laws, but the marriage ended by annulment or divorce, and you
were not at fault in failing to file a timely petition,
- You entered into your marriage in good faith, and not solely to evade US
immigration laws, but during the marriage you were battered by, or subjected
to extreme cruelty committed by, your US citizen or legal permanent resident
spouse, and you were not at fault in failing to file a joint petition, or
- Your deportation or removal would result in extreme hardship to you.
Can I Appeal an Adverse Decision?
If your application to remove the conditions on your permanent residence is
denied, you will receive a letter that must state exactly why the application
was denied. Soon after your petition is denied the USCIS will begin the process
to remove you from the country. You will be allowed to have a hearing before
an Immigration Judge who will review the denial of your application during removal
proceedings. During this review, the USCIS must prove that the facts on your
application were untruthful and that your application was properly denied. If
the Immigration Judge decides to remove you from the country, you may appeal
this decision to the Board of Immigration Appeals in Washington, DC.
Conclusion:
Though marriage
to a US citizen gives you the privilege of acquiring permanent residence
(a Green Card) in the United States, the USCIS does not make the process easy.
Moreover you are not granted US citizenship, or even permanent residence immediately
after marriage to a US citizen, rather you will be given a ‘Conditional Green
Card’ for two years. At the end of the two years you have to prove that you
have a valid marriage to remove the conditions.
Removal of the conditions on your Permanent Residence status, like the adjustment
of status process, should not be assumed to be an easy process. It is estimated
that each year 450,000 Americans marry foreign nationals, and it is assumed
by many that a majority marry for immigration purposes only. The authorities
at the USCIS are prepared for this often abused strategy and do not grant permanent
residence or citizenship to anyone who applies.
The purpose of the interviewing officers, at both the adjustment of status
and removal of conditions stages, is to ascertain the couple’s true intention
behind the marriage. It is the job of the married couple to prove that they
did not marry solely for the immigration benefits. To prove this, you have to
include evidence of the relationship and show that the marriage was entered
in good faith. For proof of a valid marriage the USCIS usually looks for evidence
of commingling of finances. This can include financial records such as joint
bank accounts, joint tax returns, insurance policies or loans, and any lease
or mortgage contracts showing that you share a residence. Of course the best
proof of a valid marriage would be the birth certificate(s) of any children
born to the marriage, Proper documentation and timely filing are the things
that you need to take care of. Once your petition is approved, you will be granted
a 10-year permanent resident card, which is certainly worth your efforts.
The Immigration and Nationality Act governs immigration in the United States.
The specific eligibility requirements and procedures for removing conditions
on permanent resident status are included in the Code of Federal Regulations
[CFR] at 8 CFR § 216.
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