Conditional Permanent Residence

Petition to Remove Conditional Permanent Resident Status

If a foreign national marries a U.S. citizen, the foreign national becomes an immediate relative and may be able to apply for U.S. permanent residency as a result of the marital relationship, either through adjustment of status or through Immigrant Visa Processing (IVP).

Under INA Ā§216, if the case is approved, but the marriage is less than two years old at that time, the foreign national will receive conditional permanent residency, which bestows all the benefits of lawful permanent residency, but only for a period of two years. Therefore, the conditional permanent resident card is valid for two years from the date of approval. See INA Ā§216(g).

 

Jointly Applying to Remove the Conditions on Permanent Resident Status

Applying to remove the conditions on the foreign nationalā€™s permanent resident status requires submitting a comprehensive package to USCIS emphasizing the continuing legitimacy of the marital relationship and continuing eligibility for adjustment of status. The main form that the foreign national spouse must file to apply for remove the conditions on their permanent resident status is Form I-751. See USCIS AFM Ch. 25.1(c)(1). The I-751 form inquires about the continuing legitimacy of the marital relationship, residential history, and any criminal issues that may have arisen since the foreign national was approved for their conditional permanent resident card. See 8 CFR Ā§216.4(a)(5).

Ninety (90) days prior to the expiration of the conditional permanent resident card, the foreign national and their U.S. citizen spouse should file a joint petition to remove the conditions on the foreign nationalā€™s conditional permanent resident status. See INA Ā§216(d)(2) and 8 CFR Ā§216.4(a)(1). Note: If this petition is filed before this ninety (90) day period, USCIS will return the petition with a notification that the petition was filed prematurely.

The packet should include documents to support the continuing legitimate marital relationship between the couple including, but not limited to, documentation showing joint ownership of property, lease showing joint tenancy of a common residence, documentation showing commingling of financial resources, birth certificates of children born to the marriage, affidavits of third parties having knowledge of the bona fides of the marital relationship, etc. See USCIS AFM Ch. 25.1(e)(1).

 

Waivers of the Joint Filing Requirement

If the foreign national and the U.S. citizen spouse cannot file the petition together, then the foreign national may be able to file the same petition with a waiver of the joint filing requirement. Depending on the reason behind the coupleā€™s inability to file the petition together, the timeline during which the petition can be filed and the documentary evidence to be submitted with the petition, will differ. Some of the more common situations are briefly described below. See 8 CFR Ā§216.5

If the Foreign National & U.S. Citizen Spouse are Separated:

Ā§ When can the foreign national file?

  • Any time after approval of conditional permanent resident status and after separation and prior to the expiration of the conditional permanent resident status and/or removal
  • However, if the couple is currently separated and have commenced divorce proceedings, it would be ideal to file after the divorce is finalized.
  • If this is not possible because of a rapidly approaching expiration date of the foreign nationalā€™s conditional permanent resident status, then they may still file but should ensure that the divorce decree will be available in a reasonable time period (i.e. before the application is adjudicated). Since the waiver option applies for those foreign nationals who are divorced, not merely separated or in the midst of divorce proceedings, the divorce must be finalized prior to the petitionā€™s adjudication.
  • Thus, filing the petition with a request for a waiver of the joint filing requirement on the grounds that the marriage has been legally terminated would only be allowed in situations where the marriage has in fact been legally terminated. See USCIS AFM Ch. 25.1(h)(2).

Ā§ What documents should be submitted?

  • Documents to be submitted include a copy of the Final Decree of Divorce (or similar document legally terminating the marriage), when available; evidence that the foreign national entered into the marriage with the U.S. citizen in good faith; and any criminal history issues that may have arisen since the foreign national was granted lawful permanent resident status
  • If any criminal issues have arisen, it is very important to analyze the immigration consequences (if any). A detailed consultation with an experienced immigration attorney would be prudent prior to filing the petition.

If the Foreign National & U.S. Citizen Spouse are Divorced:

Ā§ When can the foreign national file?

  • Any time after approval of conditional permanent resident status and after the legal termination of the marriage and prior to the expiration of the conditional permanent resident status and/or removal

Ā§ What documents should be submitted?

  • Documents to be submitted include a copy of the Final Decree of Divorce (or similar document legally terminating the marriage), when available; evidence that the foreign national entered into the marriage with the U.S. citizen in good faith; and any criminal history issues that may have arisen since the foreign national was granted lawful permanent resident status
  • If any criminal issues have arisen, it is very important to analyze the immigration consequences (if any). A detailed consultation with an experienced immigration attorney would be prudent prior to filing the petition.

If the U.S. Citizen Spouse is Deceased:

Ā§ When can the foreign national file?

  • Any time after approval of conditional permanent resident status and prior to being removed from the U.S. See USCIS AFM Ch. 25.1(c)(2).

Ā§ What documents should be submitted?

  • Documents to be submitted include a copy of Death Certificate of the U.S. citizens spouse; evidence that the foreign national entered into the marriage with the U.S. citizen in good faith; and any criminal history issues that may have arisen since the foreign national was granted lawful permanent resident status
  • If any criminal issues have arisen, it is very important to analyze the immigration consequences (if any). A detailed consultation with an experienced immigration attorney would be prudent prior to filing the petition.

If the Foreign National has been battered and/or subjected to Extreme Cruelty by U.S. Citizen Spouse:

Ā§ When can the foreign national file?

  • Any time after approval of conditional permanent resident status and prior to being removed from the U.S. See USCIS AFM Ch. 25.1(h)(1).

Ā§ What documents should be submitted?

  • Documents to be submitted include evidence of the abuse, evidence that the foreign national entered into the marriage with the U.S. citizen in good faith; and any criminal history issues that may have arisen since the foreign national was granted lawful permanent resident status
  • If any criminal issues have arisen, it is very important to analyze the immigration consequences (if any). A detailed consultation with an experienced immigration attorney would be prudent prior to filing the petition.

 

Consequences of Failing to File

If the petition is not filed, then the foreign national will automatically lose their permanent resident status as of the expiration date of the conditional permanent resident card. The foreign national will then become removable from the U.S. If the failure to file was through no fault of the foreign nationalā€™s or due to extraordinary circumstances, the petition may be filed late with a request that USCIS excuse the late filing with a written explanation of circumstances that caused the late filing. See 8 CFR Ā§216.4(a)(6).

 

After Filing the Petition

Receipt Notice

After the petition packet is filed, the foreign national will receive a Receipt Notice within 2-3 weeks. The Receipt Notice with serve to extend the foreign nationalā€™s employment authorization and travel permission for a period of one year or until the petition is adjudicated, whichever is earlier. The Receipt Notice is also important for following up with USCIS in the future on this matter and checking the case status online.

Biometrics Notice

Approximately 2-3 weeks after the Receipt Notice is generated, USCIS will schedule the foreign national for a Biometrics Appointment at a local USCIS Field Office or an Application Support Center. At that appointment, the foreign national will have their picture and fingerprints taken so that the necessary security background checks can be completed.

Request for Evidence

If USCIS determines that the information/documentation submitted is inadequate to satisfy the petition requirements and further information is needed, they will issue a Request for Evidence (RFE). The Request for Evidence will specifically state the documents/information they are seeking and a timeline under which they need to be submitted (all requested information should be submitted at the same time). Failing to respond to the RFE may result in the denial of the petition.

Interview Notice

Approximately 2-3 weeks after the Biometrics Appointment, USCIS may schedule an interview on the pending petition. The interview notice will list documents that need to be brought to the interview and will require that both the foreign national and the U.S. citizen spouse attend the interview (for jointly filed cases) or the foreign national attend the interview alone (for petitions filed with a request for a waiver of the joint filing requirement). In some cases, USCIS will adjudicate the petition favorably without requesting an interview.

 

The I-751 Interview

Purpose of the Interview

The purpose of the interview is two-fold. The first purpose is to ensure that the marital relationship is legitimate and not for the purpose of obtaining immigration benefits. The second purpose is to ensure that the foreign national does not have any recent criminal problems that would render them removable from the United States.

If the foreign national has applied for a waiver of the joint filing requirement, an additional purpose would be to ensure the foreign nationalā€™s eligibility for the waiver being sought.

During the Interview

When the foreign national (and U.S. citizen spouse, if jointly filed) first arrive for the interview, the adjudicating officer is likely to begin by swearing in the foreign national. After that, they are likely to review the paperwork submitted to ensure that the information submitted is still accurate (current address, etc.). If they have any concerns about any recent criminal history issues, they are likely to ask questions about those at this time also. Lastly, the officer will also ask questions regarding the marital relationship to ensure that the couple has/had a legitimate marital relationship. Some of the questions might include topics such as where the couple first met, which side of the bed the other shares, their wedding, information about the otherā€™s family, etc. In some circumstances, whether it be a random selection, or concerns regarding the particular couple, the couple may be separated for this part of the interview process. Additionally, if the foreign national is seeking a waiver of the joint filing requirement, the adjudicating officer is likely to ask questions to determine the foreign nationalā€™s eligibility for the waiver being sought.

Possible Outcomes of the Interview

The interview usually concludes with one of three possibilities:

Approval

  • Ideally, the officer will end the interview by letting the foreign national know that their petition has been approved and they will receive their new green card within 30-60 days.
  • Need Supervisory Review/Background Checks Not Cleared
  • In some cases, the adjudicating officer might state that while everything looks good, the file needs supervisory review before approval and/or that they are still awaiting for background checks to clear.
  • USCIS is likely to provide an update within 30-60 days after the interview.

Issue w/Case

  • In some cases, the adjudicating officer might feel that there is an issue with the case. They will not provide a decision at that time and will follow up within 30-60 days.

 

Approval for Lawful Permanent Residency

If the case is approved, the foreign national will receive a lawful permanent resident card valid for ten (10) years. In the future, the foreign national can apply for Naturalization to become a U.S. citizen if they meet certain requirements.

 

Our Firmā€™s Experience

Our firm has represented individuals located all over the U.S. (and those residing overseas) with petitions to remove conditions on their lawful permanent resident status, jointly and with waiver requests. We have been successful in having the conditions on their permanent resident status removed and the issuance of their ten (10) year lawful permanent resident cards.

 

References

INA Ā§216

8 CFR Ā§216

USCIS Adjudicatorā€™s Field Manual Ch. 25.1

 

Revised by Nisha V. Fontaine, Esq. on December 26, 2011