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Conditional Marriage-Based Green Cards
For foreign nationals who have been married to a U.S. citizen for less than two years when they arrived in the U.S. or when their green card (adjustment of status) was approved will not qualify as a permanent resident. Rather, they will be categorized as conditional. With increased concern and scrutiny by the U.S. Citizenship and Immigration Services (USCIS) that recent marriages are not legitimate, immigration laws were put in place to allow for USCIS to review the marriage of a conditional resident after two years.[1]
Conditional and permanent residents have equal rights to travel outside of the U.S., lawfully work without the need to apply for a separate work permit and can work towards obtaining U.S. citizenship. The main difference between the two, is that conditional residency expires after two years. To remove conditions on residence, the immigrant must apply for permanent residency before the two-year expiration mark. Those who have already been married longer than two years when arriving in the U.S. or when obtaining their green card will have a ten-year expiration date on their card and do not need to apply to remove conditions.
Applying to Remove Conditions on Residence
To apply for permanent residency, the U.S. citizen spouse and immigrant will file a joint petition with the USCIS. They will submit form I-751, Petition to Remove Conditions on Residence along with other supporting evidence. [2] Supporting documents are similar to those needed when first filing for a marriage-based petition, form I-130, Petition for Alien Relative.[3] Evidence such as joint bank accounts, utility bills and lease agreements are important to help provide proof of a real, ongoing marriage. Additional evidence that is helpful includes any birth certificates of children born to both the U.S. Citizen and conditional immigrant.
When to Apply for Permanent Residency
It is important to apply for permanent residency at the correct time. The petition must be filed within the 90-day period before the immigrant’s conditional residence ends. You can refer to your green card, which will provide the two-year expiration date. If you have a ten-year expiration date, this means you are a permanent resident.
If you file the petition too early, USCIS will likely return your petition. If you miss the three-month time frame to submit your petition, you may be excused by the USCIS only if you submit a cover letter explaining the cause for delay. The regulations allow for an excused delayed filing if it was for a “good cause,” such as a family or medical crisis, move or job change.[4] The USCIS states in the I-751 form instructions that they may your late filing due to, “extraordinary circumstances beyond your control and that the length of the delay was reasonable.”
Failing to file your petition to remove conditions on time could result in being placed in deportation removal proceedings. If you do not apply for permanent residency during the deadline then your conditional residence status and card will be expired. If you are concerned that you have missed the deadline to file, please contact our office for assistance.
After filing the petition, USCIS may request to do an interview for you and your spouse. If the USCIS determines that the marriage is fraudulent, then the immigrant could lose their status and be required to leave the U.S. Some applicants may be waived from this interview request. (For more information, please see the USCIS’ revised Policy Memorandum that went into effect on December 10, 2018, on the guidance of waiving the interview requirement for form I-751).[5]
Check List for the I-751 Petition (joint filing)
- I-751, Petition to Remove Conditions
- I-751 filing fee and biometrics fee* (total of $680 as of 12/12/18)
- Copies of the front and back of your Permanent Resident Card (and for any conditional children included in the petition)
- Evidence that this is an ongoing and real marriage: copies of a joint lease agreement, utility bills, health insurance, taxes, etc.
- A copy of your marriage certificate
- Affidavits of support signed by a third party, providing proof that they know you both and that your marriage is legitimate
- Dispositions on criminal charges, arrests, or convictions (if applicable)
- If you are filing overseas additional documents will be required (such as passport size photos and fingerprints)
- For those filing late, you will also need to submit an explanation for the reason you are filing late.
*NOTE: Filing fees are subject to frequent revisions, as are the forms and requirements. For the current fee amounts please check the I-751 instructions page.[6]
What if the Marriage Has Ended?
If the marriage has ended (such as through death or divorce), it may be possible for the immigrant to apply for a waiver for the joint petition requirement and file the I-751 alone. It will still be required to provide supporting evidence showing that the marriage was real. Additional evidence will be required for the claimed basis of the waiver.
If you are divorced or separated from the U.S. citizen spouse and need to file the I-751, please contact our office for guidance.
[1] https://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter7-4.html
[2] https://www.uscis.gov/i-751
[3] http://syedfirm.com/document-check-list-to-prepare-for-a-spouse-based-petition/
[4] https://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter16-14.html
[5] https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-11-30-PM-602-0168-revised-interview-waiver-guidance-for-form-I-751.pdf
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