1. What is Removal of Conditions on Permanent Residence based on Marriage?
A lawful permanent resident is given the privilege of living and working in the U.S. permanently. Permanent resident status is conditional if it is based on a marriage that is less than two years old on the day the foreign national is granted permanent residence. The foreign national is given conditional resident status on the day he or she is lawfully admitted to the U.S. on an immigrant visa or receive Adjustment of Status. The permanent resident status is conditional because the foreign national must later prove that he or she did not enter into marriage solely to obtain permanent residence or otherwise evade the immigration laws of the U.S.
2. How Does One Apply for Removal of Conditions on Permanent Residence?
The foreign national and U.S. citizen spouse must jointly petition to remove the conditions on foreign national’s residence by filing Form I-751 to USCIS during the 90 days before the foreign national’s second anniversary as a conditional resident. The expiration date on the conditional Green Card is the date of the second anniversary as a conditional resident. If Form I-751 is not filed in time, the foreign national spouse will lose his or her conditional resident status and may be removed from the country.
3. Does the Foreign National Spouse Need to be Physically Present in the United States at the Time of Filing?
The Form I-751 (Petition to Remove the Conditions on Residence) can be filed regardless of whether the foreign national spouse is physically present in the United States at the time of filing. However, the foreign national may need to return to the U.S. to complete biometrics, and the foreign national spouse and the U.S. citizen spouse may need to return to the United States with the children in order to comply with the interview requirement.
4. Is a Personal Interview of the Joint Petitioners Required?
The foreign national and the U.S. citizen spouse must appear for a personal interview at the district office that serves the area where they live. However, USCIS has the discretion to waive the interview requirement. USCIS will review the petition to determine whether an interview is required. If USCIS is satisfied based on the written petition that the marriage was a good faith marriage and not entered into in order to obtain immigration benefits, he or she may waive the interview requirement and approve the petition. If the director is not satisfied of the validity of the marriage based on the petition, he or she will forward the petition to the district office to conduct an interview.
5. How Can a Foreign National Get a Waiver of the Requirement to File a Joint Petition?
If the foreign national spouse is unable to apply jointly with the U.S. citizen spouse to remove the conditions on his or her residence, he or she may request a waiver of the joint filing requirement when filing Form I-751 (Petition to Remove the Conditions on Residence).
The foreign national spouse may request a waiver of the joint petitioning requirements if he or she:
- Proves that termination of conditional resident status and removal from the U.S.would result in extreme hardship;
- Entered into a marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and were not at fault in failing to file a timely petition;
- Entered into a marriage in good faith, and not to evade immigration laws, but during the marriage he or she was battered by, or subjected to extreme cruelty committed by the U.S. citizen of lawful permanent resident spouse, and were not at fault in failing to file a joint petition.