Family Based

Removal of Conditions From Green Card

If a petitioning and beneficiary spouse has been married for less than two years at the time their green card is approved, that residency is conditional. Conditional residency means that the conditional green card status can only be removed by a joint petition or by a waiver if the joint petition cannot be filed.

What is the removal of conditions from a green card? ( Form I-751)
Where the petitioning and beneficiary spouse have been married for less than two years at the time their green card is approved their residence will be conditional. Conditional residency means that the conditional green card status can only be removed by a joint petition or by a waiver if the joint petition cannot be filed.

If the conditional resident is still married to the petitioning US citizen spouse, a joint petition should be filed by the husband and wife. The parties will jointly file a petition to Remove the Conditions on Residence within the 90-day period preceding the second anniversary of the date of the conditional residence. The petition must be accompanied by evidence that demonstrates the marriage was entered into in good faith. Examples of such evidence include proof of joint ownership of property, commingling of finances (e.g. tax forms, bank statements, insurance policies), birth certificates of children, photos of the couple taken during the marriage, declarations of persons having knowledge of their marriage and other documentation establishing a bona fide marital relationship. If the USCIS determines that the qualifying marriage was entered into in good faith, it will approve the joint petition, remove the conditional status, and grant permanent residence status, a ten year green card.

What happens when spouses separate or divorce during conditional status?
Not all marriages work out as intended. Immigration law permits for a waiver where an immigrant cannot file a joint petition with their U.S. citizen spouse. Section 216(c)(4) of the Immigration and Nationality Act (INA) provides for a waiver in instances where a joint petition to remove the conditional residence cannot be filed. The three independent bases for a waiver are: 1) the immigrant will suffer extreme hardship if removed; 2) the marriage was entered into in good faith but the qualifying marriage has been terminated; and/or 3) the marriage was entered into good faith and the immigrant was subject to battery or extreme cruelty.

Due to the complexities of removing the conditional status of permanent residency, especially where requests for waivers are required, conditional residents should consult knowledgeable and experienced immigration attorneys.

What kind of waiver is right for you?

  • Good Faith Marriage Waiver: The good faith marriage waiver can be filed when the marriage ended in divorce, but nonetheless you can show that it was entered into in good faith. As a prerequisite this waiver requires that the marriage be terminated. Such a waiver cannot be considered by USCIS until the divorce or annulment is final. However, finalizing a divorce may take several months. Many conditional residents who married in good faith, have found themselves in the midst of a divorce without a final decree at the time the petition to remove the condition is due. An immigration expert should be consulted when filing a good faith waiver.
  • Extreme Hardship Waiver: The extreme hardship waiver requires the immigrant to establish that he or she would suffer extreme hardship if removed from the United States. Common examples of hardship include medical conditions, financial difficulties, and the separation of family members. If hardship already existed prior to the period of conditional status, United States Citizenship and Immigration Services (USCIS) will not consider it. The USCIS will only consider the hardship to the immigrant that arose during the conditional status period. A couple does not need to be divorced in order for a spouse to file such a waiver, an extreme hardship waiver may be filed even if the couple is separated.
  • Extreme Cruelty Waiver: An immigrant may also file for a waiver based on battery or extreme cruelty. Extreme cruelty includes physical violence and psychological and emotional abuse. If an immigrant believes she may have suffered extreme cruelty, it is important for her to seek not only help with her immigration status but also assistance with her personal safety and well-being.

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