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

The process of applying to become a lawful permanent resident, or “green card” holder, via marriage to a U.S. citizen can offer a number of procedural advantages. Unfortunately, the relative ease of obtaining a green card through marriage has led some to try to abuse this aspect of the U.S. immigration system. Marriage-based immigration benefits are only appropriate when a marriage is bona fide, meaning that it has been 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 the second part of this article.]

Conditional Permanent Residence and Removal of Conditions

A foreign national who receives permanent resident status based upon marriage to a U.S. citizen obtains 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. In order to remove the conditions on residency and obtain the unconditional permanent resident status, the foreign national spouse typically must file a petition to remove conditions on residence (form I-751) within the ninety-day period immediately prior to the end of the second year of conditional permanent resident status. The expiration date is printed on the face of the physical green card. The manner in which the applicant files the I-751 and the strategies involved depend upon the particular marital situation.

Standard Process for Married Couple Filing I-751

In most circumstances, if a couple remains married, the I-751 must be filed jointly (i.e., signed by both spouses). 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 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, which would be common for many married couples.

Prior to approving the I-751, the conditional permanent resident must appear for an in-person interview. However, in most cases, the USCIS has the discretion to waive this requirement, and routinely does so.

Filing I-751 After Divorce or Annulment

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

Conclusion

Individuals who are facing the need to file for removal of conditions should seek legal advice, particularly if the marriage faces difficulties or has been terminated. More details on the I-751 filing process are discussed in Part 2 of this article.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.

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