Removing Conditional Residence

David Sturman

A permanent resident is given the privilege of living and working in the United States permanently. However, a person’s permanent residence status will be temporary or conditional if it is based on a marriage that was less than two years old on the day he or she was given permanent residence. A new permanent resident’s status is conditional, when based upon a recent marriage because the USCIS wants the new immigrant to prove that he or she did not get married solely to evade U.S. immigration laws.

What and When to File To Remove Conditional Residence:

If you are a conditional resident, your residence will expire two years after issuance.  The law states that such Conditional Residents must jointly file with their spouse, a form I-751 within the 90 days preceding the expiration date on the conditional permanent residence card.

When filing a form I-751 jointly with your spouse, you both must complete the form, sign it, and send it to the USCIS with the appropriate filing fee. It is also a good idea to attach to the petition evidence of the validity and continuing existence of your relationship such as joint tax returns, joint bank accounts, bills, joint property, or other evidence showing cohabitation.

It is very important to file the I-751 within the correct window of time, and be sure not to file it before the 90-day window. If you file it too early, the USCIS will reject the petition. If you file it after the expiration of your conditional residence, the USCIS may deny the petition and revoke your permanent residence.  If this happens your residence will be terminated and the USCIS may commence removal (deportation) proceedings against you.

Remember, you will NOT be sent any reminder to file this petition from USCIS. You must make sure to calendar the expiration of your residence and file your petition in a timely manner.

How If You Are Divorced?

If you are no longer married to your spouse when your conditional residence is about to expire, you still must file the form I-751, but this time you file it alone.  U.S. Immigration Law permits a divorced or widowed conditional resident to self-petition for removal of conditional residence. To do so you must show:

  1. Proof of termination of your marriage.
  2. Proof of the validity of your marriage and proof with appropriate evidence that it was not entered into solely to evade immigration laws of the U.S.

How If Your Spouse Refuses to Sign the I-751?

If you are still married but your spouse refuses to cooperate or you are separated but not divorced you still must file the I-751. You have several choices under these circumstances:

1.File a self-petition as a married spouse and argue that you would suffer extreme hardship if the petition is not granted and you had to return to your home country. (This grounds for filing an I-751 is often difficult to prove and can result in a denial of the petition in many cases.)

  1. Divorce your spouse and file a self-petition as set forth above proving that the marriage was legitimate.
  2. File a self-petition as an abused spouse who suffered physical or mental abuse at the hands of the U.S. citizen or permanent resident spouse.

What Happens After Filing the I-751?

In most cases where the couple files a joint petition to remove conditional residence, the USCIS will adjudicate the petition without an interview of the parties provided evidence is submitted proving the validity of the marriage. Processing times vary but adjudications are usually completed in six months or less.

In cases where the conditional resident files a self-petition, the adjudication process is slower and often times an interview is required to give the applicant an opportunity to prove the validity of the marriage.  Sometimes these interviews can be quite involved and can take more than an hour of questioning. It is always advisable to be prepared for the interview, have your documents with you ready to present, be ready to explain why your marriage was valid and why you are divorced.  An attorney is permitted to attend these interviews with the applicant and having an attorney present often makes the process less stressful and more organized.

What Happens During the Pendency of the I-751?

After filing an I-751 either jointly or individually, the USCIS will promptly mail the applicant a receipt showing that his or her permanent residence has been extended during the pendency of the petition process.  The applicant can have his or her passport stamped with a temporary evidence of permanent residence in order to work or travel.

What Happens if the Petition is Denied by the USCIS?

Decisions by the USCIS on I-751 petitions are not appealable.  This means if the petition is denied by the USCIS the only place to renew the petition is before an immigration judge while in removal (deportation proceedings.) The applicant will of course be given a chance to appear before a judge and reapply. He or she can produce whatever evidence he or she believes will prove that the marriage through which residency was received was legitimate and not a sham or fixed marriage. During these hearings, the applicant may have an attorney of his or her choice present at the applicant’s own expense.  Witnesses can be called to testify and the applicant can also testify in his or her own behalf.   The immigration judge has the power to reinstate the permanent residence that the USCIS denied.

It is always recommended that persons seeking removal of conditional residence be sure to do so in a timely manner and seek the advice of a competent immigration lawyer if questions or problems arise.

David Sturman will answer your questions regarding removing conditional residence for free. Contact him at 818-714-2226.