Removal of Conditions for a Conditional Permanent Resident Gained Through Marriage

I-751 Petition to Remove the Conditions of Residence

Once a foreign individual marries a U.S. citizen and permanent residence is granted within the first two (2) years of marriage, through either admission into the U.S. or adjustment within the U.S., the foreign person is granted permanent residence with a condition, or “conditional residence.” The initial grant of permanent residence is conditional for two (2) years and he or she must take additional further action to ensure the continuation of his or her permanent resident status beyond the two year time allotted.  This further action is the filing of the I-751 Petition to Remove the Conditional Residence.

What is a Conditional Resident? 
If a marriage was performed within less than two (2) years from the day the foreign born spouse is granted lawful admission to the U.S or granted adjustment of status (I-485) in the U.S., the foreign born spouse will receive a “conditional resident” immigration status. Conditional residents have most of the same rights as permanent residents, meaning that they can live and work in the U.S. and also travel outside the U.S. and return while the two year conditional residence is valid.  The conditional resident will know the two year time-frame for the validity and expiration dates because they are shown on the permanent resident alien card (I-551). 

What Happens After Conditional Residence Is Granted?

Typically, the conditional resident lives in the U.S. with his or her USC spouse for the two year period of time, and they prepare to file the I-751 Petition jointly during the 90 day period prior to expiration of the conditional residence.  

However, USCIS can affirmatively terminate a conditional resident’s status prior to the 2 year elapsing if the government determines the marriage was solely entered into to procure admission as an immigrant, or if the marriage is judicially annulled or terminated other than through death of spouse, or if the government finds that a fee was given to the USC as consideration for the filing of the immigrant visa process.  

Additionally, a conditional resident is unlike a permanent resident because the conditional status has a set expiration date.  The condition, then, is the requirement to file the I-751 within the 90 days prior to the expiration of the conditional residence.  The U.S. Congress introduced this two year, limited, conditional residence, in order to place a time factor on a newly married couple, primarily to screen out marriages that were performed solely to evade U.S. immigration laws. 

A conditional resident must file a Form I-751 Petition in order to request a continuation of his or her permanent residence beyond the initial two year time period originally allotted.  Failure to file the I-751 Petition timely results in the termination of the resident status by USCIS. 

Timing 

The I-751 Petition must be filed within 90 days PRIOR TO the expiration of conditional resident status. Expiration of conditional status is plainly exhibited on the permanent resident alien card (I-551).  Unlike a permanent resident who receives a ten year card and continues to be a permanent resident even if the card expires, a conditional resident faces the consequences of termination of status if the I-751 petition is not timely filed within the 90 days allowed.  Timing is important because the I-751 Petition will not be accepted if it is filed too early.  If filed too early, it can either be rejected or worse yet, the USCIS will accept the filing through cashing the filing fee, but later deny the petition for having been filed too early.

However, filing after the expiration of conditional resident status severely jeopardizes the ability of the foreign person to remain in the U.S. as a permanent resident.  Acceptance of a late filed I-751 Petition is discretionary on the part of USCIS, and requires a written explanation of good cause and extenuating circumstances for failure to file within the required 90 day time-frame, along with corroborating evidence of circumstances.  If the late filed I-751 is accepted by USCIS, an adjudication process will still be held to allow the USCIS to review the petition and approve or deny it. If the failure to file is determined to not be for good cause or with insufficient evidence of extenuating circumstances, then USCIS will issue an NTA (Notice to Appear) so that the foreigner will appear in front of an immigration judge for removal purposes.

If the conditional residence expires, and the two year elapses without an I-751 Petition being filed at all, USCIS will normally begin removal proceedings against the foreigner through issuing an NTA. 

Bona Fide Marital Relationship 

The Requirements of an I-751 Petition include proving the Bona Fides of the marriage.  Providing evidence to show a bona fide marital relationship should be done with as much documentation as possible. Evidence to enclose with your form includes: 

• A declaration that describes how you met your spouse, why you decided to get married, what has elapsed since marriage and admission as a conditional permanent resident, and your continued feelings towards each other in as much detail as possible. 
  
• Proof of joint ownership of property or other documents that show joint ownership or joint financial responsibility such as bills, a lease or mortgage, a rental agreement, and/or statements showing a joint bank account or joint credit card accounts. 
• Insurance documents that show joint coverage or beneficiaries of a plan. 
  
• If there are children born during the marriage or legitimated through marriage, the certified record of birth for each child should be provided. 
  
• Jointly filed tax returns in the U.S. 
• Date-stamped photographs of time you have spent together or travel together with your spouse since admission or adjustment. 

This is not an exhaustive list; this just represents the kind of documentation that will help establish that you were married in good faith. 

Joint Filing Requirements 

The I-751 Petition is meant to be filed jointly with the U.S. citizen (USC) spouse. This ensures that both spouses attest to the good faith marriage and can be interviewed or questioned about the marriage. However, there are some exceptions to the joint filing requirement, if certain circumstances occur that prevent a joint filing.  These circumstances include: 

• The marriage has ended in divorce during the two years of conditional residence.
• The USC spouse has died within the two years of conditional residence.
• The foreign born spouse was subjected to physical or mental abuse.

While the three above exceptions may allow a filing of the I-751 Petition by solely the conditional resident, without the signature of the USC spouse, the conditional resident must still establish that the marriage was entered into with good faith, not merely to avoid U.S. immigration law. Therefore, evidence and affidavits will be important to present for a successful I-751 Petition. 

Exception to Good Faith Marriage and Joint Filing Requirement 

If the foreign person cannot prove the three above exceptions, he or she may still avoid the joint filing requirement if he or she qualifies for the extreme hardship exception. The extreme hardship exception requires the applicant to prove that he or she would suffer extreme hardship if returned to his or her country of origin. 

Extreme hardship is the most difficult of the joint filing waiver exceptions to prove. Extreme hardship can include if the applicant had been the victim of domestic violence, sexual battery, or some other trauma, and can persuasively describe the physical or psychological trauma that the applicant suffered and the trauma that the applicant would experience if the applicant was forced to return to his or her country.  There is case law that suggests that documentation or evidence of the bona fides of the marriage is not required, if extreme hardship to the applicant if returned to home country can be shown.

What If Multiple Reasons Exist for the Waiver of the Joint Filing Requirements?

If the conditional resident is not able to file jointly with his or her spouse, he or she should mark all exceptions that apply at time of filing the I-751 Petition, providing proof for each facet as required. 

What if the I-751 Petition is Denied? 

If the I-751 Petition is denied, the USCIS will normally initiate removal proceedings through the issuance of an NTA.  The applicant may usually file another I-751 Petition with new evidence, if the issue(s) in the previous denial can be overcome. There are standards of proof that vary and whether the applicant or the government bear the burden of proof vary depending on when the initial I-751 was filed, whether it was timely filed, whether it was jointly filed, and whether circumstances have changed since filing.  

After the USCIS issues a denial, and an NTA is filed with the court, the immigration judge will review documentation and credibility, and make his or her own determination to approve or deny the I-751, or whether the residence shall be terminated.

Will the Conditional Resident be Able to Live and Work in the US While the I-751 is Pending or if the I-751 Petition is Denied? 

A conditional resident, who timely files the I-751 Petition, either jointly or with request for joint filing waiver, will receive a Receipt Notice from the USCIS that has wording upon the receipt notice to authorize work for a period of one year from the date of the receipt notice issuance.  If the I-751 Petition is not adjudicated within that one year, the applicant may obtain a temporary I-551 stamp in his or her passport or upon a USCIS created I94 card.

If the conditional resident did not file timely during the 90 day time-frame, then it is upon the discretion of the USCIS to accept the late filed petition and issue the receipt notice. However, even if the USCIS determines to not accept the I-751 petition, or if the I-751 Petition is not filed at all, once an NTA is filed with the Executive Office for Immigration Review to place the foreign person into removal proceedings, the foreign person shall receive proof of resident status from USCIS through the issuance of a temporary I-551 stamp, typically placed on the foreign person’s valid passport or on a USCIS created I94, to document continued ability to work until an immigration judge hears the case and determines to grant the I-751 Petition, terminate the status, or grant a different form of relief.
Click here to view the Form I-751._____________________________________________________________
i:  There are certain exceptions where permanent residence does not continue throughout the 10 years, is deemed abandoned, or is terminated even if the ten-year card remains valid on its face. ii:  If the marriage ends through final divorce, death or in certain circumstances of abuse by US citizen, filing of the I751 petition may be done prior to the 90 day period of time, but legal advice should be sought to ascertain whether an early filing is available or advisable. iii:  Legal separation or a pending divorce during the two years of conditional residence raises some evidentiary issues and requires a strategic plan to file I751 Petition.