Immigration Law Associates
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I-751 Petition to Remove Conditions on Residence

Introduction
The Immigration Marriage Fraud Amendments of 1986 (\"IMFA\") were enacted in response to a realization that many foreign nationals married U.S. citizens for the primary purpose of obtaining permanent residence. The IMFA created a provision that requires foreign nationals married less than two years at the time of their Immigrant Visa interview to subsequently demonstrate (two years later) that their marriage is genuine.  

This is accomplished through the filing of a joint petition to remove the conditional status and should be replete with documentation evidencing the bona fides of the marriage. While conditional permanent residents can travel and work with their alien resident card (I-551) for a period of two years, the ongoing status of the alien is conditioned on the marriage.
 
Despite the best of intentions, sometimes even genuine marriages fall apart in less than two years. The IMFA was designed as a tool against marriage fraud, so that in these situations a waiver of the joint petition can be filed which will be outlined below.  

Jointly Filing to Remove Conditions
A Conditional Permanent Resident and their U.S. Citizen spouse must file form I-751 within 90 days of the second anniversary of the date their green card was granted. If the couple does not timely file a joint I-751 petition, the foreign spouse’s legal status will be terminated and deportation proceedings maybe initiated.

However, under “good cause and extenuating circumstances” USCIS can waive the untimely filing. Those that file outside of the filing period must file a written explanation of why they failed to file on time and request that USCIS excuse the late filing. It is at the discretion of USCIS to forgive the untimely filing, and it is not guaranteed.

According to the Immigration and Nationality Act the following must be established with all petitions to remove conditions:

1.    the marriage was legal where it took place;
2.    the marriage has not been terminated;
3.    the marriage was not entered into for the purpose of procuring residency; and
4.    no fee (other than attorney’s fee to assist in filing) was paid.

As with the original green card petition, the I-751 petition must be accompanied by evidence that the marriage is bona fide. Such evidence includes, but is not limited to:

•    joint ownership of property
•    lease showing joint tenancy
•    commingling of finances
•    birth certificates of children
•    affidavits of third parties

Once the petition is filed, the Conditional Permanent Resident receives a receipt notice from the United States Citizenship and Immigration Service (USCIS) automatically extending their status for one year. Most I-751 petitions are approved without an interview. However, a certain number of petitions are randomly selected each year and scheduled for an interview with an immigration officer. Dependent children of Conditional Permanent Residents do not need to file a separate I-751 if they received their Conditional Permanent Residence on the same date or within 90 days of their parent.

Note that if a couple separates during the two year conditional status period, but remain on friendly terms, they can still choose to jointly file the petition to remove conditions. Both spouses must sign the I-751 petition attesting that the marriage was not entered into for the purpose of procuring an immigration benefit, and provide evidence of a bona fide marriage. Where a joint filing is not possible, the Conditional Permanent Resident could request a waiver of the joint filing requirement on form I-751.

Waiver of the Joint Filing Requirement
Waivers of the joint filing requirement on form I-751 can be filed before, during or after the 90-day filing window. To obtain the waiver, the foreign national must prove one of the following:

1.    that termination of status and removal from the U.S. would cause extreme hardship to the foreign national;
2.    that the marriage was entered into in good faith but terminated in divorce; or
3.    that the foreign national was battered or was the subject of extreme cruelty by the U.S. Citizen during the   marriage.

Those who file a waiver post separation, but prior to divorce, will automatically receive a request for evidence requiring that that the divorce be finalized in 87 days. If the divorce is not finalized in time to respond to the request for evidence, the USCIS will issue a notice revoking the conditional status and the foreign spouse may be placed in removal proceedings. Therefore, only those foreign nationals who are poised to quickly submit proof of termination if their marriage after filing the I-751 petition should utilize this policy.

Please note that waiver provisions do not apply to cases in which the U.S. Citizen spouse has died. However, the foreign national must still prove that the marriage was legal where it took place and that the marriage was not entered into for the purpose of procuring residency.

Citizenship and Marriage
After an I-751 petition is approved and complete Permanent Residence is granted, most foreign nationals begin thinking about citizenship. When a foreign national receives their green card through marriage, they can apply for citizenship 90 days before the third anniversary of their green card, under the condition that they are still married to the U.S. citizen. If a divorce occurs prior to the filing anniversary for citizenship, the foreign national must wait to file until 90 days before the fifth anniversary of their green card. To learn more about citizenship, visit our Citizenship/Naturalization page.

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