These are general answers to generic questions and should not be construed as legal advice. Every case should be reviewed by an experienced immigration attorney.
If an individual obtains resident status in the US through marriage, and at the time the resident status was granted the marriage was less than 2 years long, the resident will receive conditional permanent resident status.
Conditional resident status is granted the day of lawful admission into the United States through an immigrant visa or adjustment of status to permanent residence.
Status is considered conditional because it must be proven that the marriage was not entered into for the sole purpose of evading the United States immigration laws. To do so, you must file Form I-751, Petition to Remove Conditions on Residence within the 90 days prior to the expiration of your conditional resident card.
Eligibility for Removal of Conditions
Conditions may generally be removed, if:
- You are still married to the same U.S. citizen or permanent resident after 2 years. You can include your children in your application if they received their conditional-resident status either at the same time as you or within 90 days after you did;
- You entered a marriage in good faith, but the marriage ended through divorce or annulment;
- You entered a marriage in good faith, but either you or your child were abused or subjected to extreme hardship by your U.S.-citizen or permanent-resident spouse;
- You are a widow/widower who entered your marriage in good faith; or
- You are a child that cannot be included in your parents’ application.
*Specific eligibility requirements and procedures for removal of conditions on permanent resident status are included in 8 CFR Section 216 of the Immigration and Nationality Act’s (INA) Code of Federal Regulations (CFR).
Removal of Conditions: Application Process
The application process begins with you and your spouse applying together by filing a Form I-751. The process should take place during the 90 days before your second anniversary as a conditional resident. The expiration date on your green card is also the date of your second anniversary as a conditional resident.
If you are no longer married to or have been battered or abused by your U.S.-Citizen or Lawful Permanent-Resident Spouse or Parent, it is possible to waive the joint filing requirement. You may apply to remove conditions on your permanent residence at any time after becoming a conditional resident, but prior to being removing from the country. In this case, providing evidence of extreme hardship consequently of removal from the United States is necessary.
You may request a waiver of the joint petitioning requirements if:
- You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition
- You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you or your child were battered by, or subjected to extreme cruelty committed by your U.S. citizen or permanent-resident spouse, and you were not at fault in failing to file a joint petition
- Your removal would result in extreme hardship
An interview may be required to demonstrate eligibility to remove the conditions on your residence. It is critical to seek or at minimum consult with an experienced immigration attorney, prior to filing the removal of conditions applications. If so, you will receive an appointment notice informing you when and where to appear for your interview.
Our Orlando Immigration Law office has assisted people from all over the US, including but not limited to New York, Illinois, Florida, Texas, and California for removal of conditions.
Child and Minors: Conditional Green Card
If you and your child received conditional resident status within 90 days of each other, then your child may also be included in your application to remove the conditions on permanent residence. If not, your child must file a separate I-751 application.
Failure to File within the 90-day period
Failure of properly filing Form I-751 within the 90-day period before your second anniversary as a conditional resident will result in:
- The receival of a notice from U.S. Citizenship and Immigration Services (USCIS), informing you of your failure to remove conditions;
- The automatic termination of conditional resident status, and removal proceedings against you will begin;
- You will receive a Notice to Appear at a hearing, at which you may review and refute the evidence against you.
The Form I-751 can be filed with USCIS after the 90-day period, only if you can provide evidence – in writing – to the director of the appropriate Service Center that there was good cause for failure to remove conditions. Life can be complicated, often times there is a valid reason for the late-filing. It would be essential to consult with an experienced attorney regarding the late filing of your 751 application. The late filing will be adjudicated, if the the good cause was accepted and all other requirements were met, the approval of the Form I-751 and restoration of your permanent resident status will occur at the discretion of USCIS.
Denial and Appeal
If your application is denied, you will receive a letter from USCIS detailing the reason behind the denial. Removal proceedings could begin immediately after, and you are permitted to have an immigration judge review the denial of your application during removal proceedings. You will be able to present additional evidence such as witness testimony. If the immigration judge decides to remove you from the country, you may generally appeal this decision within 30 days of the removal decision.