Conditional Permanent Residence: the “2 years” Green Card.
Permanent residence status is called “conditional residence” if it is based on a marriage that was less than 2 years old on the day you were granted permanent residence status. Conditional resident status begins on the day when person is lawfully admitted to the United States on an immigrant visa or adjustment of status application is approved. The green card will be valid only for two years.
Status is called “conditional” because an immigrant must prove that he or she did not get married only with a purpose to evade immigration laws of the United States. To remove conditional residence Form I-751, Petition to Remove Conditions on Residence must be filed on time and must be supported by extensive evidence of marital relationship throughout your entire marriage.
Removal of Conditions on Permanent Residence Based on Marriage: Eligibility Criteria
Generally, you may apply to remove your conditions on permanent residence if you:
- Are still married to the same U.S. citizen or permanent resident after 2 years. You may include your children in your application if they received their conditional-resident status either at the same time or within 90 days as you;
- Are a child and, for a valid reason, cannot be included in your parents’ application;
- Are a widow or widower who entered into your marriage in good faith;
- Entered into a marriage in good faith, but the marriage ended through divorce or annulment; or
- Entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S.-citizen or permanent-resident spouse.
How to Apply for Removal of Conditions:
You and your spouse must apply together to remove the conditions on your residence by filing Form I-751 jointly. Both spouses must sign the petition and certify that the information is true. Petition must be supported by various evidence of a good faith marriage.
When to File a Petition Form I-751:
You must file a petition during the 90 days period before your second anniversary as a conditional resident, as listed on your green card. The expiration date on your green card is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status and be removed from the country. It is person’s responsibility to file the petition on time. USCIS rarely reminds about the timing of filing.
Petition filed late, may be accepted by USCIS upon applicants showing a good cause for filing late and sympathetic or humanitarian circumstances.
If You Are No Longer Married To Your Spouse or If You Have Been Battered or Abused by Your U.S.-Citizen or Lawful Permanent-Resident Spouse or Parent: Waivers.
Several waivers of the joint filing requirement are available. You can apply as a self-petitioner to waive the joint filing requirement if you are no longer married to your spouse, or if you have been battered or abused by your U.S.-citizen or lawful permanent-resident spouse or parent. You may also request a waiver if you suffered an extreme hardship during the period of permanent residency. You must provide evidence that removal from the United States would cause you extreme hardship.
In such cases, you may apply to remove the conditions on your permanent residence at any time after you become a conditional resident, but before you are removed from the country.
Your Child’s Conditional Green Card:
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 I-751 application if your child received conditional resident status more than 90 days after you did.
If You Are Late In Applying To Remove The Conditions On Residence:
If you fail to properly file 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 removal proceedings will be begin against you;
- You will receive a notice from USCIS telling you that you have failed to remove the conditions;
- You will receive a Notice to Appear at a hearing in the Immigration Court. At the hearing you may review and rebut the evidence against you.
- The Form I-751 can be filed after the 90-day period if you can prove in writing that there was good cause for failing to file the petition on time. USCIS has the discretion to approve the petition and restore your permanent resident status on case by case basis.
How to Get a Waiver of the Requirement to File a Joint Petition:
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. You may request consideration of more than one waiver provision at a time, but you have to provide appropriate evidence for each type of waiver.
You may request a waiver of the joint petitioning requirements if:
- You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition;
- Your deportation or removal would result in extreme hardship;
- You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you or your child were battered by, or subjected to extreme cruelty committed by your U.S. citizen or permanent resident spouse, and you were not at fault in failing to file a joint petition.
Notably, extreme hardship waiver does not require showing of a good faith marriage. However extreme hardship is only considered during the period of conditional permanent residence.
If You Are In Divorce Proceedings But Not Yet Divorced:
If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:
- You filed a waiver request. USCIS will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).
- You filed a Form I-751 petition jointly. USCIS will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.
Upon receipt of the final divorce decree or annulment within the specified time period, USCIS will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.
As a permanent resident, you have a green card. This card will continue to prove that you have a right to live and work in the United States permanently. If you file Form I-751 on time, USCIS will extend your conditional resident status and work and travel authorization until a final decision has been made on your application. You will receive a Notice of Action reflecting these facts.
An interview may be required to demonstrate eligibility to remove the conditions on your residence. If an interview is required, you will receive an appointment notice telling you when and where to appear for your interview. Interview may be waived by USCIS if evidence submitted with the petition clearly shows that your marriage was bona fide. In this case USCIS will approve your petition and send you your new 10 year permanent resident card.
How to Appeal:
If your application to remove the conditions on your permanent residence is denied, you will receive a formal Decision stating why the petition was denied. There is no appeal but the decision can be reviewed by the Immigration judge in removal proceedings.
The process to remove you from the country can be initiated soon after your petition is denied. You will have a legal right to have an Immigration Judge review the denial of your application during removal (deportation) proceedings. During this review, USCIS has a burden to prove that the facts on your application were untruthful and/or that your application was properly denied. If the Immigration Judge decides to remove you from the country, you may appeal his or her Order.
Generally, you may appeal within 30 days after the Immigration Judge makes a decision to remove you from the United States. Appeals are reviewed by the Board of Immigration Appeals.
Removal of conditions (Form I-751) is a complex legal matter. CONTACT our law firm for a consultation before you file a petition.