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?
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