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Removing Condition on Permanent Residence Based on Marriage

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Apr 24, 2019)

If a U.S. consulate has issued you an immigrant visa, or if the USCIS has adjusted your status in the United States, within two (2) years of your marriage to your U.S. citizen or permanent resident spouse, then you must have received a conditional permanent resident status.  The same is true of the stepchildren of a U.S. citizen or permanent resident, who receive permanent residence on the basis of the marriage to their foreign-born parent.

Note that you may have received a regular green card, if at the time the consulate issued your visa, you were married for less than two years but by the time you arrived in the United States, you had crossed the two (2) year line. In that case, the U.S. Custom and Border Protection may have adjusted your visa class.

Your children, who accompany you or come here separately, on the basis of your marriage to your spouse, should also have received a regular or conditional permanent residence status corresponding to the status that you have received.

To remove the condition on your permanent residence or the permanent residence of your children, you must file a Petition to Remove Conditions on Residence (Form I-751).  The purpose of the conditional permanent residence is to give the immigration officers the opportunity to closely examine the underlying marriage and detect instances where a marriage may have been utilized to evade the immigration laws of the United States.

If you and your children have conditional permanent residence status, it is critical that you file a timely petition to remove the condition. Otherwise, you and your children will automatically lose your conditional permanent residence status and will be placed in a removal (deportation) proceeding.

How do I know if my permanent residence (green card) is conditional?

If you have received a Permanent Resident Card that is valid for two (2) years, then you are a conditional permanent resident. If you were overseas and went through consular processing before coming to the United States, or if you were in the United States and after the approval of your adjustment of status application requested that a visa be stamped in your passport, look for the visa class notation in your passport.  Regular permanent residents receive an IR-1 (spouse) or an IR-2 (children) visa.  Conditional permanent residents receive a CR-1 (spouse) or CR-2 (children) visa.  If there is a discrepancy in your documents, consult an attorney.

Am I eligible to apply for removal of condition on permanent residence?

You are eligible to apply for removal of condition on your permanent residence, if you are married to the same U.S. citizen or permanent resident who sponsored your immigration by the time you file your application. You may also be eligible to file for removal of condition on your permanent residence, if your marriage was terminated by divorce or death of your spouse or you or your children were battered or abused by your spouse (see below for details).

You must include, on your petition, your children who became a conditional permanent residence either at the same time as you or within 90 days from you. If any of children received a conditional permanent resident status farther than 90 days from you, that child must file a separate application.

When should I file my Petition to Remove Conditions on Residence?

If your permanent residence is conditional, you must file your Petition to Remove Conditions on Residence within 90 days before the expiration of your conditional Permanent Residence Card. Remember that 90 days is not always 3 months. Also see above regarding whether you must include your children on your petition or whether they must file separate petitions.

Do not file the petition late. If you do not file the petition on time, your conditional permanent residence status will be terminated automatically, you will be placed in removal (deportation) proceeding, and you will receive a notice to appear for a removal hearing.

At the hearing, you will have the burden of proof (i.e., you must show) that you complied with the law and filed a timely petition. The USCIS is not required to prove that you did not.

Do not file the petition earlier than 90 days before the expiration of your conditional Permanent Residence Card. If you do, the USCIS will return your petition and its supporting materials to you as being improvidently filed. You may not get a notice of this action until it is too late to file a timely petition.

There are limited instances when you may file your Petition to Remove Conditions on Residence earlier than 90 days before the expiration of your conditional permanent status (see below).

What if I miss the deadline for filing my Petition to Remove Conditions on Residence?

If you are late in filing your Petition to Remove Conditions on Residence by a few weeks (hopefully before you are placed in removal proceeding), send your petition, its supporting materials, and the required fees, together with a cover letter explaining your circumstances and the reason(s) for the delay. The director of the USCIS Service Center, where your petition is filed, has the discretion to allow belated petitions for “good cause.”  For this purpose, good cause may include such intervening events as medical emergencies, death in family, or other significant personal or work-related events "beyond your control."  Include supporting materials for your "good cause," if you have them ready or offer to submit them if required. Do not exaggerate your reasons. Your reasons must be legitimate and you must be ready to prove the occurrence of the events you are alleging. If you are called to task and fail to establish what you have represented is true, you will encounter substantially more serious problems than the one you tried to remedy.

How do I petition to remove conditions on the permanent residence of myself and my children?

You and your spouse must “jointly” apply to remove the conditions on your permanent residence, by filing a Petition to Remove Conditions on Residence (Form I-751), together with supporting documents, and the required fees.

You must include, on your petition, your children who became a conditional permanent residence either at the same time as you or within 90 days from you. If any of your children received a conditional permanent resident status farther than 90 days from you, that child must file a separate application.

In addition to other required documents, the Petition to Remove Conditions on Residence must be supported by evidence showing that your marriage was bona fide and you and your spouse married in good faith. To establish that, you may submit documents in all or some of the categories listed below:

  • Birth records of children born to your marriage
  • Joint bank account and credit card statements
  • Joint lease for, or title to, family home
  • Driver licenses showing your common address
  • Joint ownership of vehicles
  • Joint insurance policies (health, auto, property, etc.)
  • Itineraries, tickets, boarding passes, hotel receipts, and similar documents showing you traveled together
  • Photographs showing both of you at different events or in company of others
  • Invitations and letters addressed to both of you
  • Social media entries showing your relationship
  • Love letters (if you don't mind)
  • Affidavits of friends, family, and neighbors attesting to your relationship and the fact that you have been living together as spouses

You may also include similar documents regarding the periods of your courtship and engagement, as well as documents regarding your marriage ceremony (announcements, invitations, social media entries, contracts with vendors, pictures, etc).

To see the current USCIS fee for this petition, see USCIS Fee Schedule.

To see how long the USCIS would take to adjudicate your petition, see USCIS Processing Times.

Is there a way to file the petition by myself without my spouse as a joint petitioner?

You may seek a waiver of the requirement that your spouse joins on the petition, if

  • Your spouse has died,
  • Your marriage has been terminated by divorce or annulment,
  • You were abused or battered by your spouse,
  • In case of children, you were abused or battered by your U.S. citizen or permanent resident step-parent, or
  • You would experience extreme hardship, if your status is terminated.

In either case, you must show that the underlying marriage was bona fide.  See Recognition of Marriage and Its Bona Fide for Immigration Benefits

Can I self-petition for removing condition on my permanent residence, if my marriage is terminated by divorce or death?

Yes. You should apply for a waiver of the joint petition requirement. Aside from other supporting documents, you must still submit evidence regarding the bona fide (being real and not fake or sham) of your marriage as well as the final divorce or decree or a death certificate, as the case may be.

If you are in a divorce proceeding which has not been finalized, you will receive a Request for Evidence (RFE) from the USCIS to submit your final divorce decree.  This will happen even if your U.S. citizen or permanent resident spouse joins you on the Petition to Remove Conditions on Residence. After you submit the final divorce decree, the USCIS will adjudicate the petition.

If your spouse has died or you are divorced and have a final divorce decree, then you may file your Petition to Remove Conditions on Residence at any time during the two-year period of your conditional permanent residency and do not need to wait for the 90-day period before the two-year anniversary of your conditional permanent residence.

Can I self-petition for removing condition on my permanent residence, if I was battered or abused?

If you are battered or abused by your U.S. citizen or permanent resident spouse or stepparent, you may self-petition for removing condition on your permanent residence.  See Waiver for Battered/Abused Spouses, Children, & Parents.

Can I stay and work in the United States while my petition is pending, even if the expiration date on my conditional green card has passed?

If you file a timely petition, the USCIS will extend your conditional green card for a limited period, which would allow you to stay and work in the United States.  The USCIS will send you a notice to this effect. If by the time your extension is about to expire, the USCIS has not yet adjudicated your application to remove the condition on your permanent residence, make an appointment with your local USCIS office, through the USCIS' Infopass Web Site, and request an additional extension to be denoted in your passport.

If you fail to file a timely petition, and in absence of s notice from the USCIS extending your status, you should consult an attorney regarding the remedies that may be available to you.

Can I travel outside of the United States while my petition is pending, even if the expiration date on my conditional green card has passed?

If you file a timely petition, the USCIS will extend your conditional green card for a limited period, which would allow you to stay and work in the United States.  While you can leave the country and come back during the extension period, if the USCIS denies your petition while you are out of the country, you may encounter unexpected complications.  If you fail to file a timely petition, and in absence of a notice from the USCIS extending your status, you should consult an attorney regarding the remedies that may be available to you.

 

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