Filing I-751 Petition to Remove Conditions When the Marriage is in Trouble or has Ended

As many people know, one of the quickest ways for a foreign national to become a permanent resident (i.e., to obtain a “green card”) in the United States is through marriage to a U.S. citizen. After marriage, the U.S. citizen spouse files an immigrant visa petition which may be processed at the same time as the green card application.

Immigration law recognizes, though, that sometimes immigrants might get married for immigration purposes – to get a green card. Doing so is illegal. To safeguard against potential immigration fraud, anyone who has been married fewer than three years on the date permanent residency is granted is made a conditional resident.

Conditional residency is factually identical to permanent residency, granting the same privileges and obligations with one significant exception: conditional residency is only approved for a period of two years. After that time, conditional residents must petition for full permanent resident status. This gives immigration officials an opportunity to take a second look at the marriage and ensure that it was not entered into fraudulently for immigration purposes.

Removing the conditions on permanent residency is a fairly straightforward process if the U.S. citizen and conditional resident spouses continue to be in a healthy, committed relationship. Trouble can arise in situations of marital strife (the couple has divorced, the spouses are estranged, domestic violence has occurred) or if the U.S. citizen spouse has died.

In this article, we discuss removing the conditions on residency when the marriage is in trouble or has ended entirely. As always, please remember that immigration law is complex and each case is different.

Removing the Conditions on Permanent Residency

In the overwhelming majority of conditional residency cases, the marriage remains valid and the spouses continue to be on good terms. In those situations, removing the conditions on permanent residency is fairly straightforward. That process looks like this:

  1. Ninety days before the expiration of the conditional permanent residency status, the couple jointly files Form I-751 Petition to Remove Conditions on Residence.
  2. The joint petition includes proof that the marriage continues to be bona fide. Evidence such as joint financial records (bank accounts, mortgage/lease, agreements, utility bills, etc.) are strong proof that a bona fide marriage continues to exist. Additionally, providing birth certificates for children, family photographs, religious records, etc., offers strong proof that the marriage continues to be legitimate.
  3. The couple attends an interview if necessary. In some cases, the U.S. Citizenship and Immigration Services will require that the U.S. citizen and conditional resident attend an interview. The scheduling of an interview does not necessarily mean that there is an issue with the petition.
  4. The immigrant receives the permanent residency card. Once the petition to remove conditions is approved, the USCIS will issue a 10-year permanent residency card.

Children of conditional residents who received their conditional residency at the same time may be included on the same petition to remove conditions. However, any child who received conditional residency more than 90 days after the primary conditional resident must file a separate petition to remove conditions.

Waiver of the Joint Filing Requirement

It is possible that a marriage was entered into legitimately, but is failing or has ended in the two-year conditional residency period. Death of a U.S. citizen spouse, divorce, domestic violence, or estrangement all might make it impossible to file a joint petition to remove conditions. These situations complicate the process, but they do not make it impossible. In this situation, the conditional resident files the petition alone, requesting a waiver of the joint filing requirement.

A waiver of the joint filing requirement may be filed at any time prior to the conditional resident’s removal from the U.S. When requesting a waiver of the joint filing requirement, the conditional resident must prove all of the following:

  1. Removal from the U.S. would result in extreme hardship;
  2. The marriage was legitimate when it was entered into but ended in divorce;
  3. The marriage was legitimate when it was entered into, but has included cruelty or domestic violence; or
  4. The marriage was legitimate when it was entered into, but the U.S. citizen spouse has died.

Proving these factors can be tricky. Essentially, they require a two-part showing. The first step is to prove that the marriage was legitimate at inception. This is proved with similar evidence to that listed above. Additionally, one might supplement this evidence with letters and affidavits from family, friends, clergy, etc., describing the marriage at the beginning.

The second level of proof requires documenting the problems in the marriage. In cases of domestic violence or abuse, the conditional resident should submit police reports, hospital records, affidavits from caregivers, etc., that describe the abuse. If the marriage has ended because of the death of the U.S. citizen spouse, a death certificate should be included.

For those seeking a waiver to the joint-filing requirement of the I-751, the petition may be filed at any time after the marriage ends or becomes estranged.  But, those in this situation should be mindful of the time requirements discussed below.

Timing

As noted, petitions to remove conditions should be filed 90 days before the expiration date on the conditional green card. Failing to file on time could result in serious immigration consequences, including termination of status and initiation of removal proceedings. As such, it is absolutely imperative that conditional residents file to remove conditions within 90 days prior to the expiration date. This is true even in situations where the marriage is in trouble or has ended.

Even though the conditional residency card might expire before the I-751 petition is approved, the conditional resident may continue to work in the U.S. until the petition is adjudicated. As long as the petition is filed within 90 days of the expiration of the card, the conditional resident will receive a notice indicating that work authorization continues.

As should have been made clear by this article, any conditional resident who is in a marriage with issues faces a challenge when filing the I-751 Petition to Remove Conditions. Anyone in this situation should seek the advice of an experienced immigration attorney.

Contact Bronx immigration attorney Delmas Costin today

If your marriage has ended or is in trouble, filing Form I-751 can feel overwhelming—but you don’t have to do it alone. Contact Bronx immigration attorney Delmas Costin today for reliable legal guidance to protect your residency and your future.