Removal of Conditions for Spouses

Marriage is a celebration of love, family, and the coming together of two people excited to share their life with each other. Navigating marriage when it comes to immigration law can make this happy time a bit more complicated. But with the help of a skilled immigration attorney and the most up-to-date knowledge about the law, you can enjoy your time as newlyweds without worrying about legal issues, such as removal of conditions from your permanent resident status.

You may have heard about “conditional permanent resident status” – but what is it and how does it apply to recently married couples?

What is Conditional Permanent Resident Status?

A permanent resident status is “conditional” if it is based on a marriage that took place less than two years before the day you became a permanent resident. The marriage must have been to a U.S. citizen or permanent resident. The purpose of this is to prove that you did not enter the marriage solely to get around the U.S. immigration laws to gain an immigration benefit.

NOTE: your conditional permanent resident status (also known as “green card”) is only valid for two years and is not eligible to be renewed. Thus, removal of such conditions is a requirement if you want to keep your permanent resident status. You cannot keep the conditional status indefinitely. If you do not timely file Form I-751, your permanent resident status will be terminated, and you’ll be deemed removable from the U.S.

How to Remove Conditions on Permanent Residence

Generally, there are two avenues for filing Form I-751, Petition to Remove Conditions on Residence: jointly with your spouse or without your spouse, but only if certain circumstances apply to your situation.

Filing Form I-751 Jointly

To file jointly with your spouse:

• You must still be married to the same U.S. citizen or permanent residence spouse as when you became a conditional permanent resident.
• You must file no less than two years after you became a conditional permanent resident.
• You must file during the 90-day period immediately before your conditional status is set to expire.

Filing Form I-751 Without Your Spouse

To file without your spouse, you must meet at least one of these requirements:

• You married in good faith (meaning for the sole purpose of marriage and not to avoid immigration laws) but the U.S. citizen or permanent resident spouse is deceased.
• Your married in good faith, but the marriage ended in divorce or annulment.
• You married in good faith, but you (or your child) were the victim of battery or extreme cruelty.
• The termination of your status and removal from the U.S. will result in extreme hardship.

If you meet at least one of the above criteria, you may file without your spouse at any time after you receive your conditional permanent resident status but before you are removed from the U.S.

Divorce and Conditional Permanent Resident Status

If you are still legally married, but going through divorce or annulment proceedings, you will technically still need to file a request to remove conditions jointly with your U.S. citizen or permanent resident spouse. Understandably, this may not be an ideal situation.

Therefore, USCIS will issue a Request for Evidence (RFE) asking for a final divorce decree or annulment. You will have 87 days to provide the requested documentation. After you’ve provided the requested document as proof of your finalized divorce or annulment, your petition will be updated to indicate that your jointly filed Form I-751 will be treated as a waiver of the requirement to file a joint petition.

Meaning, that until you have provided an official document proving you are legally divorced and no longer married, you cannot file for removal of conditions separately from your U.S. citizen or permanent resident spouse. You’ll either need to file jointly (if your spouse agrees to cooperate) or wait until you are legally divorced to file separately under the waiver.

Even though the marriage is ending, and the spouses are desiring to go their separate ways, it may still be possible for both individuals to file a joint petition and follow through with answering all questions truthfully, appearing at an interview together (if requested by the immigration officer), and attesting to the good faith marriage that existed before the divorce proceedings began.

Further, according to an April 3, 2009 memo from Donald Neufeld, titled “I-751 Filed Prior to Termination of Marriage,” USCIS cannot deny an already filed I-751 petition simply because the spouses are now separated and have started divorce or annulment proceedings. But initiating divorce proceedings can signal to USCIS that the marriage was entered into for the sole purpose of gaining permanent resident status.

Therefore, it is in your best interest to provide as much evidence as possible to show to the immigration officer reviewing your petition that the marriage was entered into in good faith. If the officer cannot determine that the marriage is bone fide (meaning “genuine” or “real”), they can then refer the case to a Field Office where an in-person interview will be scheduled with both spouses. This interview is used to determine the intent of both parties when entering into the marriage that provided the permanent resident benefit.

This interview is your last chance to prove the good faith nature of your marriage. If the Field Officer does not find enough evidence to support good faith, then they can deny the petition and terminate the conditional permanent resident status, resulting in the initiation of removal proceedings.

Any Limitations on Conditional Permanent Resident Status?

The conditional permanent resident enjoys all the benefits of a permanent resident. The “conditional” part only applies to the requirement that in two years, the recipient of the status must prove that the marriage they entered into is still valid and was entered into in good faith.

Proving Marriage Was in Good Faith

Along with a completed Form I-751, you will need to provide as much evidence as possible to prove that the marriage based upon which your conditional permanent resident status was granted was entered into for the purpose of building a life together with your spouse.

The evidence you provide must cover the time period from your wedding or marriage ceremony, up until the time you file for the conditions to be removed. If the marriage has ended, or if the spouse has passed away, you’ll need to provide evidence of these circumstances instead.

Examples of acceptable documents to prove a good faith marriage include, but are not limited to:

• Birth certificates of any children born during the marriage.
• Joint ownership or occupancy of residence (mortgage or rental contracts).
• Financial records (joint savings or checking accounts with transaction history), joint tax returns, or insurance policies (with each spouse as beneficiary).
• Affidavits from at least wo people who have known the couple since the grant of conditional permanent residence and have knowledge about the marriage and the relationship.
• Any other documents you deem necessary to prove the good faith aspect of your marriage.

Refer to the official Form I-751 as well as the USCIS “Removing Conditions on Permanent Residence Based on Marriage” web page for full details and instructions about filing Form I-751.

Children of Conditional Permanent Residents

If your child received their conditional permanent resident status at the same time as you, or within 90 days of you, then you may include that child as a dependent on your Form I-751. In this case, you’ll need to submit a filing fee of $595, along with a biometric fee of $85 for yourself any each dependent child included on your form.

Otherwise, you’ll need to submit a separate I-751 form for each child, along with the $595 filing fee and the biometric fee.

Fee waivers are available for eligible individuals.

A child can also file separately from their parent but must provide an explanation as to why along with any supporting documentation.

Employment and Conditional Residence Status

You have the full right to legally work in the U.S. as a holder of a conditional green card. If you file Form I-751 to remove the conditions on your status on time, upon receipt of your filing your conditional permanent resident status will be extended by 18 months. This will allow USCIS to process your application, while allowing you to continue working while you wait for their decision.

Late Filing of the Petition

If you miss the 90-day filing window to file your I-751 petition jointly with your spouse, you can still file it, but you must include a written explanation for why you are filing late. USCIS will then determine whether there was “good cause” for you to file late.

According to an October 9, 2009 USCIS memo, immigration officers have pretty broad discretion in determining “good cause” but some examples include: hospitalization, long term illness, death of a family member, the recent birth of a child (particularly if there were complications), and a family member on active duty with the U.S. military.

This is not an exhaustive list of acceptable examples of “good cause” for filing late, and everyone’s situation is different. To help the reviewing officer determine good cause, provide a written statement with as much detail as possible as to why you could not file on time.

Supporting documents (such as death certificate, in case of death of a family member) are not required to be submitted with your written explanation but can help to support your argument that you had “good cause” for filing late.

When to File

Filing deadlines and timeframes are different for different cases, so it is recommended to use the USCIS filing calculator or speak to a knowledgeable immigration attorney to make sure you file your petition on time.

Get Help with Form I-751

Making sure you’ve filled out the form correctly and gathered all the evidence you have to support your case can seem daunting. An immigration attorney experienced with this process can help you navigate this process and avoid any mistakes that can delay the removal of conditions from your permanent resident status.

Shihab Burke, LLC, Attorneys At Law Can Help

If you are an immigrant with any questions or concerns regarding your immigration case, H-1B visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issues you face and defend you if you’re accused of violating immigration law.

Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.

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