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A lawful permanent resident is given the
privilege of living and working in the U.S. permanently. However, permanent
residence status will be granted on a conditional basis if it is based on a
marriage that was less than two years old on the day being granted permanent
residence status. This is so that the USCIS can re-examine the bona fides of
the marriage to ensure that the marriage was not entered into for the purpose
of a green card. Conditional Resident status is granted for two years. The
grant of conditional residence will also apply to any children who immigrated
with the spouse.
Who is Eligible?
An individual may apply to remove the conditions
on his/her residence if:
- He/she is still married to the same U.S. citizen or
lawful permanent resident after two years (children may be included in the application
if they got their conditional resident status at the same time that the spouse
did or within 90 days).
- He/she is a child and cannot be included in the
application of his/her parent for a valid reason.
- He/she is a widow or widower of a marriage that was
entered into in good faith.
- He/she entered into a marriage in good faith, but the
marriage was ended through divorce or annulment.
- He/she entered into a marriage in good faith, but
he/she or his/her child was battered or subjected to extreme hardship by the
U.S. citizen or lawful permanent resident spouse.
- The termination of conditional resident status would cause
extreme hardship to the individual.
In order to remove the conditions, an applicant
must file a Form I-751, Petition to Remove Conditions on Residence. Applicants
should file within the 90 days before the second anniversary of becoming a
conditional resident (or 90 days before the expiration date on the green card. Failure
to file the application to remove the conditions on residence may result in a
loss of conditional resident status and removal from the country.
Joint Petition to Remove Conditions on
Residence
If the applicant and U.S. Citizen spouse (Petitioner)
are still married and living in the same residence, the application is
filed as a Joint Petition to Remove Conditions. Applications are submitted to
the appropriate USCIS Regional Service Center along with the filing fee and evidence demonstrating that the
couple still lives together as husband and wife. Applications filed with clear
and convincing evidence are usually approved by the Service Center without a
personal interview.
Waiver of the Joint Filing Requirement
If the applicant and U.S. Citizen spouse
(Petitioner) are no longer together, the applicant will have to file the Form
I-751 as a Waiver of the Joint Filing Requirement. In order to file a waiver of
the joint filing requirement, the divorce must be final. In many cases, conditional residence
status expires long before the divorce is final. In this event, applicants are
permitted to file the application later, provided they include an explanation
as to why it is being filed late. All applications filed as a waiver will be
transferred to the District Office having jurisdiction over the applicant’s
residence to be scheduled for an interview. It is highly suggested that
applicant’s falling into this category retain the services of an attorney to
represent him/her as an improperly prepared case may result in a denial which
may result in removal from the United States.
Applicants who have been battered or abused by
his/her spouse, may also file the petition as a waiver. 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 a child received conditional resident status
within 90 days of when his/her parent did, then the child may be included in his/her
parent’s application to remove the conditions on permanent residence. The child
must file a separate application if the child received conditional resident status
more than 90 days after the parent did.
- Please see USCIS Form I-751 (Petition to Remove the
Conditions on Residence) for more specific eligibility requirements.
Late Filing of an Application to Remove
the Conditions on Residence?
If an individual fails to properly file the Form I-751 within the 90-day period
before his/her second anniversary as a conditional resident, his/her
conditional resident status will automatically be terminated and the Service
will order removal proceedings against the individual. He/she will receive a
notice from the Service advising him/her that he/she failed to remove the
conditions, and will also receive a Notice to Appear at a hearing. At the
hearing the individual may review and rebut the evidence against him/her. The
individual is responsible for proving that he/she complied with the
requirements (the Service is not responsible for proving that the individual
did not comply with the requirements).
The Form I-751 can be filed after the 90-day
period if the individual can prove in writing to the director of the Regional
Service Center that there was good cause for failing to file the petition on
time. The director has the discretion to approve the petition and restore your
permanent resident status.
What happens after the application is filed?
After the application is filed, the USCIS will
send the applicant an I-797 Receipt Notice which automatically extends the permanent
resident card one year. Both employment and travel are authorized for an
additional year, while the USCIS adjudicates the I-751 Petition. An applicant
planning to travel outside of the U.S. while his/her Form I-751 is pending
should be sure to bring a valid passport, the expired permanent resident card
and the original receipt from the
USCIS.
I-751 Petitions filed jointly are typically
decided within the one year period and if sufficient evidence was submitted, an
approval notice and a new permanent resident card good for ten years will be
mailed directly to the applicant. I-751 Petitions requesting a waiver of the
joint filing requirement are forwarded to the District Office for an interview,
hopefully within the one year period.
If a decision isn’t set or an interview not
scheduled prior to the expiration of the one year period on the receipt,
applicants should schedule an InfoPass
appointment with the local District Office of the USCIS to discuss their case
with an Information Officer. Applicants should bring their passport, expired
permanent resident card, original receipt and copy of the application filed to
the appointment. Often, the USCIS will stamp the applicant’s passport as
temporary evidence of Conditional Residence status for an additional year ---
this, of course, depends on each District Office’s procedures.
The information contained in this web page is intended strictly to be used for information purposes and to educate the public in a general manner. The information contained in this page should not be considered legal advice, legal consultation, expressed or implied representation or a formal or an informal retention of this office. To create a formal attorney-client relationship a retainer must be signed and a fee must be paid to this office. Our response to any of your questions, comments, concerns etc. does not establish an attorney-client relationship. By responding to your questions we do not consider ourselves your attorneys. The response to your questions is strictly informational in nature and should not be considered or used as legal advice in any manner. The information contained on this site is general information on immigration laws and issues. The general information that is included in this web page will not cover the various exceptions and loopholes that are prevalent in the Immigration laws. We hope that our web page will educate you and hopefully enhance your understanding of Immigration laws.
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