I-751 Petition to Remove Conditions on Residence
A foreign national's permanent residence status is conditional if it is based on a marriage that was less than 2 years old on the day the green card was approved. The status is conditional, because the couple must prove that they did not get married to evade the immigration laws of the United States. This is accomplished through the filing of a joint petition I-751 to remove the conditions and should be replete with documentation evidencing the bona fides of the marriage.
Joint Filing to Remove Conditions
The I-751 petition must be filed within 90 days of the second anniversary of the date the 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.
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
- joint tenancy
- commingling of finances
- birth certificates of children
- affidavits of third parties
Once the petition is filed, the conditional resident receives a receipt notice automatically extending their status for a period of one year, while the I-751 is pending. Dependent children of conditional residents do not need to file a separate I-751 if they received their green cards 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 to procure 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.
Waiver of the Joint Filing Requirement
Despite the best of intentions, sometimes even genuine marriages fall apart in less than two years. In these situations, a waiver of the joint petition can be filed. The I-751 waiver be filed before, during or after the 90-day filing window. To obtain the waiver, the foreign national must prove one of the following:
- that termination of status and removal from the U.S. would cause extreme hardship to the foreign national;
- that the marriage was entered into in good faith but terminated in divorce; or
- 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 of 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 to procure a green card.