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How Do I Remove the Conditions on Permanent Residence Based on Marriage?
Background
Where Can I Find the Law?
Who is Eligible?
How Do I Apply?
What if I Am Late in Applying to Remove the Conditions on Residence?
How Can I Get a Waiver of the Requirement to File a Joint Petition?
What if I Am in Divorce Proceedings, But Am Not Yet Divorced?
Will I Get a Work Permit?
How Can I Check the Status of My Petition?
How Can I Appeal?
Can Anyone Help Me?
Frequently Asked Questions
Background
A lawful permanent resident is given the privilege of living and working
in the United States permanently. Your permanent residence status will be conditional
if it is based on a marriage that was less than two years old on the day
you were given permanent residence. You are given conditional resident status
on the day you are lawfully admitted to the United States on an immigrant visa
or receive adjustment of status. Your permanent resident status is conditional,
because you must prove that you did not get married to evade the immigration
laws of the United States.
- You and your spouse must apply
together to remove the conditions on your residence. You should apply during
the 90 days before your second anniversary as a conditional resident. The
expiration date on your alien registration card (commonly know as green card)
is also the date of your second anniversary as a conditional resident. If
you do not apply to remove the conditions in time, you could lose your conditional
resident status and be removed from the country.
- If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you
can apply to waive the joint filing requirement. In such cases, you may apply
to remove the conditions on your permanent residence any time after you become
a conditional resident, but before you are removed from the country.
- If your child received conditional
resident status within 90 days of when you did, then your child may be included
in your application to remove the conditions on permanent residence.
Your child must file a separate application if your child received conditional
resident status more than 90 days after you did.
Where Can I Find the Law?
The Immigration and Nationality Act governs
immigration in the United States. For the part of the law concerning conditional
resident status based on marriage, please see INA § 216. The specific eligibility requirements
and procedures for removing conditions on permanent resident status are included
in the Code of Federal Regulations [CFR] at 8
CFR § 216.
Who is Eligible?
You may apply to remove your conditions on permanent residence if:
- You are still married to the
same U.S. citizen or lawful permanent resident after two years (your children
may be included in your application if they got their conditional resident
status at the same time that you did or within 90 days).
- You are a child and cannot
be included in the application of your parents for a valid reason.
- You are a widow or widower
of a marriage that was entered into in good faith.
- You entered into a marriage
in good faith, but the marriage was ended through divorce or annulment.
- You entered into a marriage
in good faith, but either you or your child were battered or subjected to
extreme hardship by your U.S. citizen or lawful permanent resident spouse.
- The termination of your conditional
resident status would cause extreme hardship to you.
Please see USCIS Form I-751 (Petition to Remove the Conditions on Residence) for more specific eligibility requirements.
How Do I Apply?
To find out how you can apply to remove your conditions of residence, please
see Application Procedures, which help identify what you need to do. The USCIS will extend your
conditional resident status while USCIS staff reviews your application.
What if I am Late in Applying to Remove the Conditions on Residence?
If you fail to properly file the Form I-751 (Petition to Remove the
Conditions on Residence) within the 90-day period before your second anniversary
as a conditional resident, your conditional resident status will automatically
be terminated and the Service will order removal proceedings against you. You
will receive a notice from the Service telling you that you have failed to remove
the conditions, and you will also receive a Notice to Appear at a hearing. At
the hearing you may review and rebut the evidence against you. You are responsible
for proving that you complied with the requirements (the Service is not responsible
for proving that you did not comply with the requirements).
The Form I-751 can be filed after the 90-day period if you can prove in writing
to the director of the Regional Service Center that there was good cause for
failing to file the petition on time. The director has the discretion to approve
the petition and restore your permanent resident status.
How Can I Get a Waiver of the Requirement to File a Joint Petition?
If you are unable to apply with your spouse to remove the conditions
on your residence, you may request a waiver of the joint filing requirement.
You may request consideration of more than one waiver provision at a time.
You may request a waiver of the joint petitioning requirements if:
- Your deportation or removal
would result in extreme hardship
- 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 were battered by, or subjected to extreme cruelty committed by your U.S.
citizen of legal permanent resident spouse, and you were not at fault in failing
to file a joint petition.
Please see USCIS Form I-751 (Petition to Remove the Conditions on Residence)
for more specific information on waivers.
What if I Am in Divorce Proceedings, But Am Not Yet Divorced?
If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.
Please read the memo dated April 10, 2003 for more specific information.
Will I Get a Work Permit?
As a legal permanent resident, you should have received a permanent resident
card. This card will continue to prove that you have a right to live and work
in the United States permanently. If you file your USCIS Form I-751 (Petition
to Remove the Conditions on Residence) on time, the USCIS will extend your conditional
resident status for up to 12 months while your Form I-751 petition is under
review.
How Can I Check the Status of My Petition?
To check the status of your petition, please contact the USCIS office
that received your petition. You should be prepared to provide the USCIS staff
with specific information about your petition. Please click here for complete
instructions on checking the status of your petition. Please click here for more information on USCIS field offices.
How Can I Appeal?
If your application to remove the conditions on your permanent residence is
denied, you will receive a letter that will tell you why the application was
denied. The process to remove you from the country will begin as soon as your
application is denied. You will be allowed to have an immigration judge review
the denial of your application during removal proceedings. During this review,
the USCIS must prove that the facts on your application were untruthful and that your
application was properly denied. If the immigration judge decides to remove
you from the country, you may appeal this decision.
Generally, you may appeal within 33 days after the immigration judge decides
to remove you from the country. After your appeal form and a required fee are
processed, the appeal will be referred to the Board of Immigration Appeals in
Washington, D.C. For more information, please see, How Do I Appeal?.
Can Anyone Help Me?
If advice is needed, you may contact the USCIS District Office near your home
for a list of community-based, non-profit organizations that may be able to
assist you in applying for an immigration benefit. Please see our USCIS
field offices home page for more information on
contacting USCIS offices. In addition, please see our Webpage that provides information
on free legal advice.
Frequently Asked Questions
Do you want further information? Click here for access to our Frequently Asked Questions on immigration.
Copyright © 1999-2002 American Immigration LLC, ILW.COM
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