Removal of Conditions on Conditional Permanent Residence
If a foreign national obtains permanent resident status through marriage, and they have not been married for at least two years at the time they obtained permeant resident status, the permanent residence is conditional for two years. Conditional permanent residents have the same rights to live and work in the United States as other permanent residents.
Within the 90-day period prior to the two-year anniversary of obtaining conditional permanent residence, a conditional permanent resident must file a petition to remove the conditional basis of the permanent residence. Failure to timely file this petition will lead to the permanent residence being terminated and could result in the initiation of removal proceedings. Late filings may be accepted by U.S. Citizenship and Immigration Services (“USCIS”), if the alien is able to establish “good cause and extenuating circumstances” for failure to timely file the petition.
In a typical case, the petition must be jointly filed by the conditional permanent resident and their spouse. In order for the petition to be approved, USCIS must find evidence that the marriage was not entered into for the sole purpose of the alien procuring permanent resident status, but instead was entered into in good faith. Evidence of a good faith marriage may include, but is not limited to:
- Birth certificates for children of the relationship;
- Joint tax returns;
- Evidence of joint bank accounts or credit cards;
- Joint leases or mortgages;
- Joint utility bills;
- Life/health insurance naming the other spouse as a beneficiary/covered person; and
- Affidavits from friends, family members, and neighbors.
Do I Need to Be Physically Present in the United States at the Time of Filing?
The Form I-751 (Petition to Remove the Conditions on Residence) can be filed regardless of whether you are physically present in the United States at the time that you file. However you must return to the United States with your spouse and your children in order to comply with the interview requirement.
Is a Personal Interview of the Joint Petitioners (You and your spouse) Required?
You and your spouse must appear for a personal interview at the district office that serves that area where you live. However, the director of the regional service center where you file your petition has the discretion to waive the interview requirement. The director will review the petition to determine whether an interview is required. If the director is satisfied based on the written petition that your marriage was not entered into in order to obtain immigration benefits, he or she may waive the interview requirement and approve the petition. If the director is not satisfied of the validity of your marriage based on the petition, he or she will forward the petition to the district office to conduct an interview. A skilled and experienced attorney has the knowledge to prepare your petition so that these questions don’t arise.
Removal Of Conditional Resident Status For Children
Some foreign national children also receive a conditional residence. They also must have the conditions of their residency removed on time. In some instances, a conditional resident child can file for the same waivers as their conditional resident parent.
How Can I Get a Waiver of the Requirement to File a Joint Petition?
If a conditional permanent resident is unable to file a joint petition with their spouse, they may request a waiver of the joint filing requirement. Individuals seeking a waiver of the joint filing requirement, may do so at any time prior to being ordered removed from the United States. There are four types of waivers which will allow a conditional permanent resident to request a waiver of the joint filing requirement.
You may request a waiver of the joint petitioning requirements if:
- Extreme Hardship Waiver – The conditional permanent resident would suffer extreme hardship if the joint filing requirement is not waived and their permanent resident status is terminated and they are subsequently deported.
- Death of Spouse Waiver – The marriage was entered into in good faith, but the conditional permanent resident’s spouse has since died. In order to obtain a conditional green card, the surviving spouse will have to provide a copy of the death certificate. The death certificate, along with evidence that the marriage was originally entered into in good faith.
- Divorce Waiver – You entered into your marriage in good faith, and not to evade immigration laws, but the marriage has since been terminated by annulment or divorce, and you were not at fault in failing to file a timely petition.
- Battered Spouse Waiver – The conditional permanent resident has been battered or subjected to extreme cruelty by their spouse. The battered spouse will have to provide evidence of the abuse such as police, court and medical records.
Please see USCIS Form I-751 (Petition to Remove the Conditions on Residence) for more specific information on waivers.