Removing Conditions on Marriage-Based GCs
Posted Oct 01, 2004; updated Jul 07, 2008
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This outline demonstrates options available when one obtains only conditional resident status. These choices vary depending upon the marital status of the parties.
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What is Conditional Resident Status?
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As most MurthyDotCom and MurthyBulletin readers are aware, a foreign national who receives a "green card" (GC) or permanent resident status based upon marriage to a U.S. citizen is given conditional permanent resident status if the marriage is under two years old at the time of green card approval. If the marriage has been in existence for over 2 years at the time of the I-485 approval, then the foreign national spouse obtains permanent resident status without any conditions.
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The conditional permanent resident status is valid for two years. At the end of the two-year period, if nothing is filed with the USCIS, the person's conditional status will expire. In order to remove the conditions and obtain unconditional permanent resident status, the foreign national spouse must file Form I-751, Petition to Remove Conditions on Residence. [This and other USCIS forms are available through MurthyDotCom.] For jointly-filed Petitions, this form may be filed up to 90 days in advance of the conditional permanent residence expiration date. How the form is filed and the strategy involved depend upon the particular marital situation.
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The I-751 is an anti-fraud measure. It is designed to allow the USCIS to determine whether the marriage is, indeed, bona fide.
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Filing if the Couple is Married
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If the couple is still married, the I-751 must be filed jointly within the 90 days immediately before the end of the second year of conditional permanent resident status. Ideally, the couple is still together and happily married. They file their joint I-751 and show that their marriage is on-going and bona fide. Evidence submitted should include updated documentation of their joint address, any joint assets / liabilities, evidence of any children, and any other proof that they are living like most married couples.
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Filing if the Couple is Separated
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More troublesome is if the couple is still married, but separated or otherwise not getting along. With limited exception, as long as the couple is legally married, it is necessary to have a joint petition. Thus, troubled marriages often need either to be reconciled or terminated in order to file the I-751. As explained below, the I-751 can be filed by divorced individuals, and may be approved, as long as there is sufficient evidence that the marriage was genuine when initially entered into. It is more difficult to satisfy the USCIS in such scenarios, however.
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Joint-Filing Waived in Limited Cases
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There are two situations in which a person who is still legally married can file the I-751 without the spouse. The first is if the person entered into a marriage in good faith, but has been battered or subjected to extreme cruelty by the petitioning spouse. The second is if termination of permanent resident status and removal from the U.S. would result in extreme hardship to the foreign national. Extreme hardship is a high standard and can be based only upon conditions that arose after the conditional residency was acquired.
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Filing after Divorce or Annulment
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A conditional permanent resident with a marriage that was terminated due to divorce or annulment must file for a waiver of the requirement of the joint filing of Form I-751. To obtain an approval of the I-751 and be granted unconditional lawful permanent resident status, the conditional permanent resident spouse must be able to show that s/he entered into the marriage in good faith.
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The person seeking permanent resident status should expect to undergo an interview at the USCIS about the marriage. The USCIS will closely scrutinize whether the marriage was bona fide at its inception. The USCIS will review the divorce decree and complaint for matters that may be reflective of whether the marriage was entered into purely for immigration purposes or to perpetrate fraud against the United States citizen spouse or the USCIS.
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Filing after Death of U.S. Citizen Spouse
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If the U.S. citizen spouse dies the conditional permanent resident must file for a waiver of the joint I-751 petition. The conditional permanent resident must again be able to show that s/he entered into the marriage in good faith in order to obtain an approval of the waiver and be granted regular lawful permanent resident status. In order to qualify, it is also necessary to document the death of the U.S. citizen spouse and file within certain timeframes.
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Timings for Filing the I-751 in these Cases
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As noted above, jointly-filed petitions must be filed within the 90-day period prior to the expiration of the conditional status.
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Those seeking to file for a waiver of the joint filing requirement also generally file within this timeframe. They may file earlier, however; as soon as they otherwise qualify for the waiver, if they so choose.
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There are also regulations governing late filings. The late filing can be excused in certain circumstances. However, it is best to file within the proper timeframes. If this does not occur, or becomes impossible for some reason, it is best to consult with a qualified immigration attorney to devise the best possible strategy under the circumstances.
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Conclusion
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Because there historically has been a high rate of marriage fraud to obtain the green card, the I-751 is required to establish that the marriage was entered into in good faith and that no fraud occurred. Therefore, the evidence required in such cases is high. Couples should be mindful of the need to file the I-751, both in terms of timing and documentation evidencing a shared life and common household. It is very useful to maintain such documentation from the time of marriage, through the filing of the I-751.
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Individuals having marital problems should also be careful with these documents and should try to retain what they can, even if they have to leave the marital home. In most cases it is advisable to consult or work with an attorney before filing the I-751. This is particularly true for couples with marital difficulties and for those with any unusual circumstances regarding their particular marital situations.