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 Residence status.
Conditional Residence – What is it all about?
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 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 him/her of the conditional basis of his/her status, and the requirements for removal of the conditions. Conditional Residence is for two years. The notice should include a statement of what will happen if he/she fails to file a petition to remove the conditions.
What to do when conditional residence is granted:
Once your petition is approved, you will be granted a 10-year permanent resident card.
- When the foreign national spouse receives conditional residency, at the end of the conditional period they 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.
- 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 Form I-751 Petition to Remove the Conditions on Residence, with the USCIS for removal of conditional status. The expiration date on your alien registration card (commonly know as green card) is the date of your second anniversary as a conditional resident.
- 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.
- Failure to file will result in loss of your permanent resident status. 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.
- Late filings are permitted with sufficient explanation of the reason(s) for being late in filing.
Keri-Ann got married just over 3 years ago and received a conditional green card 23 months ago. Unfortunately the marriage is not out and she filed for divorce last week. She has not filed a Form I-751 to remove the conditions from her residence because she and her husband were not getting along. She has lots of proof that she got married for the right reasons (because she was in love, and not just to get a green card). Can she file a waiver application now?
No. Because she is in divorce proceedings she cannot file a joint petition, and since the divorce is not yet final she doesn’t qualify yet for the waiver. By her own statements she was not abused so she cannot seek waiver based on that ground. Keri-Ann will have to wait for the divorce to be finalized to file. She will have a legitimate excuse (the pending divorce) for filing late and as long as she has strong evidence of the validity of the marriage she should be able to remove the conditions from her status.
Who is Eligible to apply for Removal of Conditional Residency?
You may apply to remove your conditions on permanent residence if:
Process for Removal of Conditional Residence Status:
- 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.
- When the marriage is still ongoing:
If you are still married to the same spouse your adjustment of status was based on, you must file, during the 90 days before the second anniversary of receiving status as a conditional resident, 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, must be submitted to the USCIS Service Center with jurisdiction over your place of residence, together with a copy of your Permanent Resident Card and evidence of a valid marriage.
The best evidence of a valid marriage 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, joint tax returns, etc.
Another best proof that you did not get married to evade US immigration laws is birth certificates of children born to the two of you.
- When the marriage has terminated:
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.
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.
Foreign national c hildren (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.
What happens if I am late in Applying to Remove the Conditions on Residence?
If you fail to timely file the Form I - 751, i.e., 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 y ou 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. Y ou 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?
I f 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. You may request consideration of more than one waiver provision at a time.
The I-751 has two purposes and apart from being 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, it is also used as an application for the immigrant to apply for a waiver of the requirement to file the joint petition.
You may request a waiver of the joint petition requirement if:
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.
- 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 U S 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 t he USCIS will begin the process to remove you from the country. You will be allowed to have a hearing before an I mmigration J udge 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 I mmigration 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 c itizenship, or even permanent residence immediately after marriage to a US c itizen, 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 c onditions 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 everyone who applies . The purpose of the interviewing officer s, 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. 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 above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.
If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com
We cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.