Your permanent residence status is conditional if it is based on a marriage that was less than 2 years old on the day you were given permanent residence. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or adjustment of your status to permanent residence. Your status is conditional, because you must prove that you did not get married to evade the immigration laws of the United States. To remove these conditions you must file Form I-751, Petition to Remove Conditions on Residence.
Your status is also conditional if you received an EB-5 investment-based green card, but due to the majority of conditional residents being so through marriage we will mostly focus on marriage-based green cards.
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 (your children may be included in your application if they received their conditional resident status at the same time that you did 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 hardship by your U.S. citizen or permanent resident spouse
- The termination of your conditional resident status would cause extreme hardship to you
How to Apply to Remove the Conditions
You and your spouse must apply together to remove the conditions on your residence by filing Form I-751. You should apply during the 90 days before your second anniversary as a conditional resident. 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.
If You Are No Longer Married To Your Spouse or if You Have Been Battered or Abused by Your Spouse
If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. 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.
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 USCIS will begin removal proceedings 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. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements (Department of Homeland Security not responsible for proving that you did not comply with the requirements)
The Form I-751 can be filed after the 90-day period if you can prove in writing to the director of the appropriate 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.
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. You may request a waiver of the joint petitioning requirements if:
- Your deportation or removal would result in extreme hardship
- 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
- 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
If You Are In Divorce Proceedings But Are 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.
Removal of Conditions Interview
An interview may be required to demonstrate eligibility to remove the conditions on your residence. This interview, if called, will closely mirror the interview that you and your spouse went through to obtain the marriage-based green card in the first place. You will need to answer questions presented by an evaluation officer that will help him or her determine your eligibility. They will likely revolve around your relationship and, if necessary, your divorce or divorce proceedings. Be prepared to answer personal questions to the best of your ability. Answering “I don’t know” or “I’m not comfortable answering” is better than lying. Not passing the interview could mean a problem with your green card, but fraud could cost you your green card entirely and possibly invoke a bar from future attempts to enter the U.S.
Investor Green Card
So far, we have only mentioned marriage-based green cards. However, there is another category of immigrant visa that is only issued for an initial two years: the investor green card. The EB-5 is given to those that invest between $500,000 and $1 million in a U.S. business depending on the area that the business is in. If you qualify, the green card that you receive will only be valid for two years, and you will need to have the conditions removed if you want to remain in the U.S.
For the most part, the USCIS wants to see that your investment was instrumental in the creation of jobs for U.S. workers. You should keep this in mind when investing you funds, as it may be difficult if your plan does not include the creation of jobs. If you have an EB-5 and would like to remove the conditions, speak with your immigration attorney to see if your business and investment qualify for an unconditional green card.
How Our Immigration Attorneys Can Help
When it comes to securing a marriage-based green card, removing the conditions, and navigating the nuances of immigration law, it can be easy to make a simple mistake that costs you time, money, and possibly even your status. To ensure that you have the best chances of approval and have the smoothest experience possible, it’s usually best to retain the services of a qualified immigration attorney.
Here at Immi-USA, we specialize in helping people from all over the world secure legal permanent resident status here in the U.S. Our office will be happy to assist you in applying for removal of conditions on your permanent residence based on your marriage to a U.S. citizen. Whether it’s filing the initial petition or working with you to remove the conditions on your green card after a divorce, we’re here to help every step of the way.
To get in touch with one of our green card attorneys, you can fill out this contact form and schedule a consultation with our office today.