Conditional Residence Expired? Not Too Late To File For Removal Of Conditional Residence

David Sturman


Immigrants who are married to U.S. citizens usually obtain what is known as Conditional Residence. Conditional Residence is lawful permanent residence that is temporary and expires in two years unless it is timely renewed by filing either a joint petition with the U.S. citizen spouse or filing an independent petition by the immigrant without the U.S. citizen spouse. Due to a separation of the parties or a divorce, often times the conditional resident fails to file for removal of the conditional residence and the residence expires. This article discusses options to those whose conditional residence has expired.

The rules about Conditional Residence and removal of Conditional Residence are one of the most misunderstood and troublesome rules in the immigration field. If your conditional residence has expired, you are not the first one to misunderstand what to do and by taking no action at all, have found yourself in trouble. However, as I will explain, the regulations and law covering Conditional Residence are not that confusing. Once explained in a simple manner they are easy to understand.

Understand that Conditional Residence was established by the USCIS as a way to stop sham or fraudulent marriages to citizens. Instead of obtaining a permanent residence after marriage to an American, short term marriages of less than two years yield the applicant what is called a Conditional or temporary residence valid for a period of two years. The purpose of this temporary residence is to provide a test period to make sure that the marriage was not entered into solely to evade immigration laws. The thought is that the couple ordinarily will stay married for two or more years and then jointly file a petition to turn to the conditional or temporary residence into a permanent residence. In most cases, this scheme works flawlessly. A person with a conditional residence simply files a form I-751 joint petition during the 90 day period before the end of the two year conditional residency. This process is easy and in almost all cases there is no interview at the USCIS. Approval notices just come in the mail in a few months.

The problems of course arise when the marriage does not last the required two years. In the case where the conditional residence is about to expire and the U.S. citizen petitioner is not available to jointly file the I-751 or refuses to do so, the conditional resident has a dilemma: file the I-751 alone or not at all.

I can honestly say that it is very rare that choosing not to file an I-751 is the best choice: It is not. Wherever possible find a way to file the I-751 petition, even if it is late. When you are divorced, did you know that you can file the petition to remove conditional residence months after your conditional residence expires? Yes, there is no deadline.

When filing jointly, there is a deadline in which to file the I-751 petition and filing after this deadline requires a valid excuse. However, when filing alone because you are divorced, your marriage was annulled or you were subjected to abuse by your spouse, there is no deadline. This is the secret. Of course, you want to file on time, but if for some reason, you do not file before your conditional residence expires, you can file late anyway, all the way up until the time you are ordered removed from the United States. This means even if you are somehow scheduled for a deportation hearing, you can even ask the judge for removal of your conditional residence. It is not too late to file even at that stage! More importantly, if you can show that your marriage was valid and legitimate, even if you are divorced, you can still be approved and keep your permanent residency. We have done this many times. It is not magic, it is the law.

Therefore, in your case, just because your Conditional Residence expired, you can still file a petition to remove your conditional residence if you are filing separately and not part of a joint petition. In your case, you are divorced, so you are eligible to file separately along with proof of your divorce. You also will need to prove that your marriage was validly entered into and legitimate so you will need to attach evidence of your relationship. Prepare and file the form I-751 and file it with the USCIS with the proper filing fee. Since you are filing separately, the USCIS usually will schedule you for an interview to give you an opportunity to prove that you are eligible for removal of your conditional residence. If you can show that your marriage was legitimate you have a good chance of recapturing your permanent residence and having a long happy life in the U.S. Remember, don’t give up. You have a good chance of winning. The worst decision is to do nothing.

Remember, also if you were physically or mentally abused by your spouse while you were married, you may also file the form I-751 independently based upon this abuse. Again, you should document that your marriage was legitimate but that you were abused by your spouse. Police reports, arrest records, and even just affidavits of witnesses or just your own affidavit may suffice to qualify you for removal of conditional residence.

There may be other options available to you that are not covered by this column so I would highly recommend that you contact an experienced immigration attorney before taking any action.