Removing Conditions on Marriage-Based GCs (Part 1 of 2)

Originally published in 2004, this topic has been updated for our readers.

The option of requesting permanent residence or "green card" status via marriage to a U.S. citizen can be one of the fastest means to achieve that goal. The procedural and other advantages of this option are a natural temptation to those who are inclined to try to abuse the immigration system. Marriage-based immigration benefits are only appropriate when the marriage is bona fide, meaning entered into for genuine marriage purposes and not strictly for immigration purposes. Following is a discussion of one of the government's key anti-marriage fraud mechanisms, conditional permanent residence and the procedures necessary for removal of those conditions. [See also Part 2 of this article.]

Conditional Permanent Residence and Removal of Conditions

A foreign national who receives permanent resident ("green card") status based upon marriage to a U.S. citizen is issued that status on a conditional basis if the marriage has existed for less than two years at the time of green card approval. If the marriage has been in existence for two years or longer at the time of the green card approval, then the foreign national spouse obtains permanent resident status without any conditions or strings attached.

The conditional permanent resident status is valid for two years. At the end of the two-year period, if no paperwork is filed with the U.S. Citizenship and Immigration Services (USCIS), the individual's conditional status will expire and s/he will no longer hold permanent resident status. In order to remove the conditions on residency and obtain an unconditional permanent resident status, the foreign national spouse must file a petition to remove conditions on residence (Form I-751). The way in which the I-751 is filed and the strategies involved depend upon the particular marital situation, as described below.

Filing the I-751 if the Couple is Still Married

Except in the circumstances described below, if the couple remains married, the I-751 must be filed jointly within the ninety-day period immediately prior to the end of the second year of conditional permanent resident status. The expiration date is clearly stated on the physical green card.

Ideally, the couple still is happily married and building a life together. In that event, they must file the jointly signed I-751 and demonstrate through extensive documentation that their marriage is ongoing and bona fide. Evidence submitted should include updated documentation of their shared life together. Typically, this includes updated proof of a joint residential address, proof of joint assets and liabilities, birth certificates of any children born after the green card approval, and other proof that they are sharing financial assets and liabilities and living like most married couples.

Less Ideal Situations for Filing the I-751

Filing after Divorce or Annulment

It is possible to request a waiver of the joint filing requirement, however, if the marriage was entered into in good faith, but was subsequently terminated. To obtain approval of the I-751 and be granted unconditional lawful permanent resident status in this situation, one must provide proof of the legal termination of the marriage and be able to show that the marriage was entered into in good faith.

The conditional permanent resident should then expect to undergo an interview about the marriage at the local USCIS office, which will closely scrutinize whether the marriage was bona fide at its inception. The USCIS will review the divorce decree and complaint for indications that the marriage was entered into purely for immigration purposes or to perpetrate fraud against the United States citizen spouse or the USCIS. The applicant would still be expected to present updated proof of a shared life with the spouse following the approval of the conditional green card, until the time when the marriage broke down.

Filing if Couple is Separated

When couples are having marital difficulties, there is often an extended period when they are still married, but not getting along. Given the two-year duration of conditional residency, there are many cases involving marriages that have not yet legally ended, even if the relationship between the couple is over. It can take time for couples to decide whether or not their marriage can be saved.

Even when divorce is decided upon, it is rarely possible to legally terminate the marriage quickly. This is because many states require a period of separation before a divorce can be granted (legal requirements for separation prior to being granted a divorce vary from state to state, with timeframes typically ranging from six months to two years). Individuals can find themselves in a period of marital limbo, therefore, when they are separated, yet legally married at the time when the I-751 is due. In the past, unless the couple was still amicable, so that the U.S. citizen spouse would sign the form, the conditional permanent resident could not file, and then the conditional status would terminate. As such, these individuals were ineligible to request the waiver based on termination of the marriage.

Policy Allows I-751 Filing While Divorce is in Process

In 2009, however, the USCIS issued a memorandum specifically addressing the lack of a waiver category for those who married in good faith and remain legally married, but are separated or in the process of divorcing. The memorandum makes it possible to file the I-751 based upon a divorce that is in process. Under the procedures established by the memorandum, USCIS officers who review such cases are to issue a request for evidence (RFE) if they encounter an I-751 requesting waiver of the joint filing requirement that was filed prior to a divorce. Such RFEs request proof of termination of the marriage in the form of a divorce decree or annulment. The RFE has the standard 87-day response period. Thus, it is important in these cases to act promptly, moving the divorce matter forward, if possible.

This policy provides the individual with additional time to obtain proof of the termination of the marriage in the form of a divorce decree or annulment. If the foreign national spouse can provide proof of the termination of the marriage within the allowed timeframe, the case can be approved. This is a significant variation from the general immigration requirements that an individual must be eligible for the benefit requested at the time of filing. This is one situation in which a slow processing time may work to the advantage of the foreign national, as it may provide enough time to finalize termination of the marriage.

Conclusion

Individuals who are facing the need to file for removal of conditions should seek legal advice, particularly if the marriage faces difficulties. If the marriage was entered into for bona fide marriage purposes, it can be possible to remove the conditions even without a joint I-751 filing. Such cases are more complex, however, and proper legal guidance can be the key to increasing one's chances of success.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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