Applying For Green Card Removal of Conditions
When the foreign national spouse has been granted conditional residency, a joint petition must be submitted to USCIS in order to remove the conditions on the residency i.e. the Form I-751.
NOTE: The Form I-751 can be filed regardless of whether the foreign national spouse is physically present in the U.S. at the time of filing or not. However, the spouse must return to the U.S. to comply with the biometrics requirements and a possible interview requirement.
STEP 1a: File The Joint Petition
The Advance Parole application must include:
With only a few exceptions, the foreign national spouse and the U.S. citizen must jointly file a Petition to Remove Conditions on Residence (I-751) to the appropriate service center in the 90-day period immediately preceding the second anniversary of the date on which the foreign national spouse obtained permanent residence (i.e. in the 90 day period preceding the expiration of the conditional residence). The petition must be filed jointly with the U.S. citizen spouse who filed the original immigrant visa petition or fiancée petition through which the foreign national spouse obtained permanent residence. The petition shall be filed within this time period regardless of the amount of physical presence the foreign national spouse has accumulated in the United States.
NOTE: The Petition to Remove Conditions on Residence must be filed in the 90-day period before the second anniversary as a conditional resident, NOT the second marriage anniversary.
Supporting Documents And Forms To Be Submitted When Filing A Joint Petition
1. Form I-751, Petition to Remove the Conditions on Residence;
NOTE: When filing jointly, the Form I-751 must be signed by both the foreign national spouse and U.S. citizen.
2. Copy of the front and back of USCIS Form I-551 (Permanent Resident Card/Green Card);
NOTE: Copies of any of the Permanent Resident Cards or Alien Registration Cards of any of foreign national spouse’s conditional resident children must also be submitted if they are included in the petition.
3. Two identical passport-sized photographs;
4. Application fee;
5. Evidence that the marriage was entered into in good faith marriage and not to evade the immigration laws of the U.S.;
Submit copies of as many documents as possible to establish this fact and to demonstrate the circumstances of the relationship from the date of the marriage to the present date. The documents should include, but are not limited to, the following examples:
i. Birth certificates of children born to the marriage
ii. Documents showing assumption of parental rights and or responsibilities of step-children
iii. Lease or mortgage contracts showing joint occupancy and/or ownership of the communal residence
iv. Financial records showing joint ownership, commingling of assets and joint responsibility for liabilities, such as joint savings and checking accounts, joint federal and state tax returns, insurance policies that show the other spouse as the beneficiary, joint utility bills, joint installments, or other loans
vi. Affidavits sworn to or affirmed by at least two people who have known both the foreign national and U.S. citizen spouse since the conditional residence was granted and have personal knowledge of the marriage and relationship.
NOTE: Such persons may be required to testify before an immigration officer as to the information contained in the affidavit and the affidavit should contain contact information.
NOTE: It is important to submit documents that date from the date of marriage, not just the date of the initial marriage interview or grant of conditional residence regardless of the fact that these documents may have been submitted already.
STEP 1b: Filing The Petition With A Request For A Waiver of The Requirement To File Jointly
If the joint petition cannot be filed due to the termination of the marriage through annulment, divorce, or the death of the petitioning spouse, or if the petitioning spouse refuses to join in the filing of the petition, or if the foreign national has been battered or subjected to extreme cruelty by the U.S. citizen or permanent resident spouse, the conditional permanent resident may apply for a waiver of the requirement to file the joint petition.
Supporting Documents And Forms To Be Submitted When Filing With A Request For Waiver of The Joint Filing Requirement
If the conditional resident spouse is filing a petition for removal of conditions accompanied with a request for waiver of the joint filing requirement, he or she must submit the following additional supporting documents in addition to the Form I-751 and other supporting documents listed above:
1. If the foreign national spouse is filing to waive the joint filing requirement due to the death of his or her spouse, a copy of the death certificate;
2. If the foreign national spouse is filing to waive the joint filing requirement because the marriage has been terminated, he or she must submit a copy of the divorce or annulment decree or other official document terminating the marriage;
3. If the foreign national spouse is filing to waive the joint filing requirement because he or she and/or his or her conditional resident child were battered or subjected to extreme cruelty:
i. Evidence of the abuse, such as copies of reports or official records issued by police, courts, medical personnel, school officials, clergy, social workers, and other social service agency personnel; Any legal documents relating to an order of protection against the abuser or relating to any legal steps the foreign national spouse has taken to end the abuse; Evidence that the foreign national spouse sought safe haven in a battered women’s shelter or similar refuge, as well as photographs evidencing the injuries; and/or
ii. A copy of the divorce decree, if the marriage was terminated by divorce on grounds of physical abuse or extreme cruelty
4. If the foreign national spouse is filing for a waiver of the joint filing requirement because the termination of his or her status and removal would result in ”extreme hardship”, evidence that his or her removal would result in hardship significantly greater than the hardship encountered by other foreign nationals who are removed from the U.S. after extended stays;
NOTE: The evidence must relate only to those factors that arose since the foreign national became a conditional resident.
5. If the foreign national is a child filing separately from his or her parent, a full explanation as to why he or she is filing separately from the parent, along with copies of any supporting documentation.
STEP 2: Attend The Interview
USCIS shall review the Form I-751 to determine whether to waive the interview required. If satisfied that the marriage was not entered into for the purpose of evading immigration laws, USCIS may waive the interview and approve the petition. If not so satisfied, then USCIS shall forward the petition to the USCIS local field office having jurisdiction over the place of the foreign national’s residence so that an interview of both the foreign national and the U.S. citizen spouse may be scheduled and conducted.
A. Acceptance of The I-751 Petition
Any application that is not signed or accompanied by the correct fee will be rejected with a notice that the application is deficient. The deficiency may be corrected and the application resubmitted.
B. Initial Processing of The I-751 Petition
Once the application has been accepted, it will be checked for completeness, including submission of the required initial evidence. If the foreign national spouse does not completely fill out the form or file it without the required initial evidence, he or she will not establish a basis for eligibility and USCIS may deny the petition.
C. Requests For More Information
USCIS may request more information or evidence, or may request the foreign national spouse to appear at a USCIS office for an interview. USCIS may also request the submission of the originals of any copy. USCIS will return these originals when they are no longer needed.
The decision on Form I-751 involves a determination of whether the foreign national has established eligibility for the requested benefit. The foreign national (conditional resident) will be notified of the decision in writing.
E. Processing Time
If a foreign national files his or her Form I-751 on time, the USCIS will extend his or her conditional resident status for up to 12 months while the petition is under review. The I-797 Notice of Action (“Receipt Notice”) will serve as proof of the one-year extension and should be carried by the foreign national in the event of any foreign travel.
I-751 Petition For Dependents
The foreign national’s dependent children can be included in the parent’s application if the conditional resident status was received concurrently with the parent’s status and/or the child entered the U.S. within 90 days of the foreign national parent’s arrival to the U.S.
The foreign national’s dependent children must file his or her own Form I-751 if his or her receipt of conditional residence was not within 90 days of the parent’s adjustment of status or entry into the U.S. or if the foreign national parent is deceased.
Conditional Permanent Residence Possible Problems
A. Failure To File The Petition on Time
If the I-751 petition is not filed within the 90-day period immediately preceding the second anniversary of the date on which the foreign national spouse obtained lawful permanent residence on a conditional basis, it will cause the foreign national spouse to automatically lose his or her permanent resident status as of the second anniversary of the date on which he or she was granted conditional status. His or her permanent residence status will be terminated automatically and proceedings to remove the foreign national spouse from the United States may be initiated immediately.
If the foreign national spouse’s failure to file was through no fault of his or her own, he or she may file the petition late with a written explanation and request that USCIS excuse the late filing. Failure to file before the expiration date may be excused if the foreign national spouse demonstrates that the delay was due to extraordinary circumstances beyond his or her control, and that the length of the delay was reasonable.
B. Failure To Appear For The Interview
If the foreign national spouse and/or the U.S. citizen spouse fail to appear for an interview in connection with the joint petition, the foreign national’s permanent residence status will be automatically terminated as of the second anniversary of the date on which he or she obtained permanent residence. The foreign national spouse shall be provided with written notification of the termination and the reasons therefore, and a notice to appear shall be issued placing him or her under removal proceedings.
The foreign national spouse may seek review of the decision to terminate his or her status in such proceedings, but the burden shall be on the foreign national spouse to establish compliance with the interview requirements. If the foreign national spouse submits a written request that the interview be rescheduled or that the interview be waived, and the director determines that there is good cause for granting the request, the interview may be rescheduled or waived, as appropriate.
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