Conditional Permanent Residence Based on Marriage (Joint I-751 and Waivers)
When you become a lawful permanent resident of the U.S. (green card) based on marriage, if your marriage is less than two years old at the time your green card is issued, you will only receive your green card on a conditional basis. Conditional green card holders are allowed to work in the U.S., travel, and petition family members, but their green cards expire after two years. To remove the conditions on your residency, you and your spouse – together – must complete and file “Form I-751, Petition to Remove Conditions on Residence” prior to the expiration of your green card.
You and your spouse are required to file a joint petition to remove the conditions on your residency by filing “Form I-751, Petition to Remove Conditions on Residence.” This petition should be filed during the 90-day period before your second anniversary as a conditional resident. Failing to file a petition during this period will result in the automatic termination of your conditional permanent resident status.
The primary purpose of requiring a joint petition is for the U.S. Citizenship and Immigration Service (USCIS) to confirm that the marriage is bona fide. That is, to make sure that you and your spouse did not enter into the marriage solely so that you could obtain a green card. Therefore, the petitioner (likely a U.S. citizen) and the beneficiary (the foreign national who has become a conditional permanent resident) must submit evidence to establish that their marriage is legitimate. They must submit documents, and potentially answer questions under oath as well, that establishes that the marriage is valid for immigration purposes.
The USCIS does not require any specific documents in order to approve a case. Rather, they are simply looking for documents that demonstrate that the marriage continues and that the couple shares a life together. Now, there are certain documents that are commonly expected by the USCIS and submitted by the married couple, such as joint tax returns, joint bank statements, joint lease or mortgage, etc. The failure to have what the USCIS considers to be common types of joint documents does not mean that your case will be automatically denied. However, it will cause the adjudicating USCIS officer to be skeptical of your relationship, and can potentially lead to a more difficult interview regarding your relationship.
Waiver of the Joint Petition Requirement
When drafting the Immigration and Nationality Act (INA), Congress recognized that some legitimate, bona fide marriages will end before the second anniversary. They did not want to punish a foreign national simply because the marriage did not work out, so long as the marriage was valid when entered into. For this reason, the INA allows for the conditional resident to file a request for a waiver of the joint filing requirement. Waivers are available in the following instances:
• You are a widow or widower who entered into your marriage in good faith;
• You entered into a marriage in good faith, but the marriage ended through divorce or annulment; or
• 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; or
• Your deportation or removal would result in extreme hardship.
Filing a successful waiver is a challenge. The USCIS understands that a marriage being terminated within two years of a green card being issued does not automatically mean that the marriage was fraudulent, but that does not mean that they will not still have their concerns. The reality is that marriage fraud, obtaining a green card based on a marriage that was entered into solely for the purpose of obtaining immigration benefits, is a very big problem in the U.S. Therefore, the USCIS will be very diligent in reviewing and investigating all waiver requests they receive. For a case to be approved, it should be well documented with compelling and persuasive evidence. Part of the evidence should include an articulate, well-written declaration discussing the breakdown of the relationship.
Reeves Miller Zhang & Diza – Full-Service Immigration Law
If your conditional green card has expired or is about to expire, the skilled legal team at Reeves Miller Zhang & Diza can help. We regularly file joint petitions for clients who are still married and residing together, as well requests for waivers for our clients whose marriage unfortunately did not work out as they had planned. Regardless of your situation, we can help. Contact Reeves Miller Zhang & Diza today for a confidential consultation about your case.