Foreign national spouses who marry US citizens are eligible for permanent resident status in the U.S. For couples married less than 2 years, however, the foreign national is granted “Conditional Residence” status, which is valid for only 2 years. The conditional resident must petition to “remove the conditions” prior to the expiration of the conditional residence period.
Conditional Residence – What Is It?
The conditional residence period was created to combat marriage fraud and to deter those who may try to marry a US citizen purely to obtain Legal 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 generally notify him/her of the conditional basis of his/her status, and the requirements for removal of the conditions. Conditional Residence is valid for two years.
Those who have been married for at least 2 years on the date of admission to the U.S. with the immigrant visa or on the day the adjustment of status is approved will be granted legal permanent residence without conditions and will receive a “green card” that is valid for 10 years.
In order to remove the conditions, USCIS must be convinced that the marriage was entered into in good faith and not solely for immigration benefits. Evidence supporting the “bona fides” of the marriage must be submitted to USCIS with Form I-751, Petition to Remove the Conditions on Residence.
Failure to file can result in loss of permanent resident status. An individual who fails to file can be removed from the country after removal (deportation) proceedings. Late filings and waiver of the joint-filing requirement are permitted (See Below).
Once the petition is approved, the foreign national spouse will be granted a 10-year permanent resident card. While the regulations require that there be an interview before the conditions are removed, USCIS can waive the interview requirement and approve the petition if sufficient evidence is submitted with the application and USCIS has no derogatory information.
Who Is Eligible To Apply For Removal of Conditional Residency?
Those who may apply to remove your conditions on permanent residence are:
- Those who are still married to the same US citizen or lawful permanent resident at the end of the two year conditional period (children may be included in the application if they received their conditional resident status at the same time as foreign national spouse, or within 90 days).
- Children who cannot be included in the application of the parent for a valid reason.
- The widow or widower of a marriage that was entered into in good faith.
- Those who entered into a marriage in good faith, but the marriage has ended through divorce or annulment.
- Those who entered into a marriage in good faith, but the spouse and/or the child(ren) were battered or subjected to extreme cruelty by the US citizen or lawful permanent resident spouse.
- The termination of conditional resident status would cause extreme hardship to the applicant.
Process For Removal of Conditional Resident Status
1.The Marriage is Intact
If the foreign national is still married to the original petitioning spouse, the Form I-751, Petition to Remove the Conditions on Residence, must be filed as a joint petition during the 90-day period before the 2-year expiration of the conditional residence status (the date printed on the “green card”) second anniversary of receiving status as a conditional resident.
The Form I- 751, signed by both spouses must be submitted to the USCIS Service Center with jurisdiction over your place of residence, together with a copy of the Permanent Resident Card and evidence of a bona fide marriage.
2.The Marriage Has Ended
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. (See more information about waiving the joint filing requirement below).
Once the petition is filed, the foreign national’s status in the US is protected and s/he can continue to work and travel as a legal permanent resident. The receipt notice that USCIS sends after the I-751 is filed is considered evidence of the extension of the legal permanent resident status.
What Type of Evidence Should Be Included With The I-751?
The best evidence of a valid marriage is proof that you have intermingled your finances and/or that you live together. Documents include lease(s) and/or mortgage documents, documents that prove that you and your spouse own property (real or personal) together, proof of joint bank accounts, proof of joint credit cards, insurance in both names (health, car, life), joint tax returns, etc.
Evidence of any child(ren) that were born to both joint filers and/or child(ren) that were adopted is also very important.
What Happens If The Petition To Remove Conditions Is Filed Late?
Conditional resident status is terminated if the I-751 is not filed within the 90-day period before your second anniversary as a conditional resident. The Form I- 751 can be filed after the conditional resident status expires but must be accompanied by a written statement showing 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 retroactively.
Upon termination of status, however, USCIS can begin removal proceedings against the foreign national spouse. Once proceedings are started, USCIS will issue a Notice to Appear (NTA) to appear at a removal hearing and a late filed I-751 can no longer be accepted by USCIS at this point.
The Immigration Court is required to give the foreign national a chance to prove that s/he complied with the requirement. The foreign national may also be able to submit a Form I-751 at the hearing if s/he has a valid reason for failing to timely file.
Waiver of The Requirement To File A Joint Petition
Those in conditional resident status who are unable to file a joint petition to remove the conditions on residence may request a “waiver” of the joint filing requirement. Applicants can qualify for more than type of wavier at the same 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 the application for the conditional resident to apply for a waiver of the requirement to file the joint petition.
A waiver of the joint petition requirement can be requested if:
- The foreign national entered into your marriage in good faith, and not solely to gain an immigration benefit, but the marriage ended by annulment or divorce, and, if filed late, the applicant was not at fault in failing to file a timely petition;
- The foreign national entered into your marriage in good faith, but during the marriage s/he was battered by, or subjected to extreme cruelty committed by, the U S citizen or legal permanent resident spouse; or
- The termination of legal permanent residence would result in extreme hardship.
Those who are filing an I-751 with a waiver of the joint filing requirement can submit the application at any time, regardless of the actual expiration of the conditional resident status up until removal proceedings are initiated and an NTA is sent. This means those who requesting a waiver do not have to wait until the 90-day period to file the petition. Also, for those who are in abusive relationships or where the marriage is ending but the divorce has not been finalized, USCIS will generally accept a late-filed I-751 as long as any delay in filing was not due solely because of the applicant.
My Case Scenario
Keri-Ann got married just over 3 years ago and received a conditional green card 23 months ago. Unfortunately, the marriage is not working 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 and he has refused to sign a joint petition. She has abundant proof that the marriage was entered into 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 Keri-Ann 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 a 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 on her status.
Can An Adverse Decision of The I-751 Be Appealed?
If the application to remove the conditions on permanent residence is denied, the foreign national will receive a “Decision” letter that must state exactly why the application was denied. Unlike most other USCIS petitions or applications, like the I-130 or I-485, however, there is no “administrative” appeal or motion to reopen process. Additionally, the denial results in automatic termination of status, which means the applicant is no longer authorized to travel into or work in the U.S.
Once the I-751 is denied, USCIS is supposed to issue the NTA and begin removal proceedings. The applicant will have the opportunity to renew the I-751 and convince the immigration judge of the bona fides of the marriage. If the Immigration Judge decides that the denial was proper and orders removal of the foreign national, that decision may be appealed to the Board of Immigration Appeals in Washington, DC.
Though marriage to a US citizen or legal permanent resident comes with the privilege of acquiring a Green Card in the United States, the privilege comes with caveats. Those who have been married for less than two years at the time the green card is granted are given a ‘Conditional Green Card’ that is valid for only 2 years. In order to remain in the U.S. permanent and eventually apply for US citizenship, the conditions must be removed.
USCIS places the burden of proving that the marriage is bona fide on the foreign national and the U.S. spouse. The process to Remove Conditions can be complex and failure to timely file or file at all can be quite serious – ultimately resulting in being removed from the U.S. That’s why it’s so important to seek legal advice regarding the I-751 Petition to Remove Conditions on Residence.
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