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.
An individual may apply to remove the conditions on his/her residence if:
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.
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.