Removing Conditions of Residence

What is Conditional Resident (CR) Status?
If you were granted permanent residence or green card based on your spouse's petition and marriage, and the marriage occurred less than two years before you were granted permanent residence, you are granted two-year, not ten-year, permanent residence. If the marriage has been in existence for over 2 years at the time of the I-485 approval (i.e., initial grant of permanent resident status), then the foreign national spouse obtains full ten-year permanent resident status without any conditions.

The immigration laws presume a marriage that is the basis for a permanent resident application ("green card") is entered into solely for the purposes of obtaining an immigration benefit ("green card"). When the underlying qualifying marriage is less than two years old USCIS grants two-year, conditional permanent resident status, rather than full ten-year permanent resident status. By making the permanent resident status conditioned USCIS provides a "backstop" for fraudulent marriages that "get past them" at the Initial Interview.

Granting conditional residence (CR) status and requiring a subsequent petition to remove conditions of residence requires the CR to establish the marriage continued after the initial grant of CR status. i.e., to prove the marriage was not for the purpose of obtaining the immigration benefit.

Removing the Conditions of Residence.
A conditional permanent resident (CR) must petition to remove conditions of residence. The petition to remove conditions of residence must be filed in a specific time window. The petition to remove conditions of residence must be filed before the expiration date of CR status (the expiration date on the two-year permanent resident card). The petition to remove conditions of residence may be filed up to 90 days prior to the expiration date of the CR status.

If a CR fails to petition to remove conditions of residence before the expiration date of CR status, USCIS may deny a late-filed petition. If a CR fails to timely file the petition to remove condition s s/he is out of status and subject to removal.

You must petition the USCIS to remove the conditions on residence before the expiration date on your permanent resident card.

At first glance, Form I-751, "Petition to Remove Conditions of Residence," appears rather simple. However, the entire process of removing the conditions on permanent residency is filled with potholes, sinkholes and traps that only a skilled immigration attorney can help you avoid. The denial of your Form I-751 could result in deportation or removal. The stakes are high.

Separation, Divorce, Extreme Hardship/Cruelty Waivers and Form I-751.
Form I-751 must be submitted jointly by the CR and the spouse who petitioned for that permanent resident status. If you and your spouse are still married, but are separated, or for some reason not getting along, you have a serious immigration problem frequently handled by our experienced Greensboro, Charlotte and Raleigh-Durham North Carolina immigration lawyers. The immigration laws permit a waiver of the joint filing requirement of the petition to remove conditions residence in several limited circumstances.

Conditional residents may request a wavier of the requirement that spouses file Form I-751 jointly. This immigration waiver is filed on the same Form I-751, Petition to Remove Conditions on Residence, but the form is completed differently than if the spouses were still married. The waiver process is considerably more complicated and the assistance of an effective immigration lawyer is even more important.

To qualify for the immigration self-petition waiver, conditional residents must show one of the following:

• Waiver Based on Death: The conditional resident's U.S. citizen has died;
• Waiver Based on Divorce: The marriage was entered into in good faith, but ended by divorce or annulment;
• Waiver Based on Extreme Cruelty: The marriage was entered into in good faith, but the conditional resident's spouse subjected the conditional resident to battery or extreme cruelty;
• Waiver Based on Extreme Hardship: Termination of the conditional resident's status would cause extreme hardship.