Any alien granted permanent resident status on a conditional basis (e.g., a spouse of a U.S. citizen; an immigrant investor), who is required to petition for the removal of the set conditions before the second anniversary of the approval of his or her conditional status.
Remove Conditions on Permanent Residence Based on Marriage
Your permanent residence status is conditional if it is based on a marriage that was less than 2 years old on the day you were given permanent residence (emphasis all mine). You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or adjustment of your status to permanent residence.
Your status is conditional, because you must prove that you did not get married to evade the immigration laws of the United States. To remove these conditions you must file Form I-751, Petition to Remove Conditions on Residence.
Generally, you may apply to remove your conditions on permanent residence if:
- You are still married to the same U.S. citizen or permanent resident after 2 years (your children may be included in your application if they received their conditional resident status at the same time that you did or within 90 days)
- You are a child and cannot be included in the application of your parents for a valid reason
- You are a widow or widower of a marriage that was entered into in good faith
- You entered into a marriage in good faith, but the marriage was ended through divorce or annulment
- You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or permanent resident spouse
- The termination of your conditional resident status would cause extreme hardship to you
Note: Refer to Form I-751 for more specific eligibility requirements
How to Apply to Remove the Conditions
You and your spouse must apply together to remove the conditions on your residence by filing Form I-751. You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your green card is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status and be removed from the country.
If You Are No Longer Married To Your Spouse or if You Have Been Battered or Abused by Your Spouse
If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country.
Your Child’s Conditional Green Card
If your child received conditional resident status within 90 days of when you did, then your child may be included in your application to remove the conditions on permanent residence. Your child must file a separate I-751 application if your child received conditional resident status more than 90 days after you did.
Where To Find The Law
The Immigration and Nationality Act (INA) governs immigration in the United States. For the part of the law concerning conditional resident status based on marriage, please see Section 216 of the INA. The specific eligibility requirements and procedures for removing conditions on permanent resident status are included in the Code of Federal Regulations [CFR] at 8 CFR Section 216.
If You Are Late In Applying To Remove The Conditions On Residence
If you fail to properly file Form I-751 within the 90-day period before your second anniversary as a conditional resident:
- Your conditional resident status will automatically be terminated and we will begin removal proceedings against you
- You will receive a notice from us telling you that you have failed to remove the conditions
- You will receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements (we are not responsible for proving that you did not comply with the requirements)
The Form I-751 can be filed after the 90-day period if you can prove in writing to the director of the appropriate Service Center that there was good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status.
How to Get a Waiver of the Requirement to File a Joint Petition
If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time.
You may request a waiver of the joint petitioning requirements if:
- Your deportation or removal would result in extreme hardship
- You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition
- You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you or your child were battered by, or subjected to extreme cruelty committed by your U.S. citizen or permanent resident spouse, and you were not at fault in failing to file a joint petition
Note: Refer to Form I-751 for more specific information on waivers
If You Are In Divorce Proceedings But Are Not Yet Divorced
If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:
- You filed a waiver request. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).
- You filed a Form I-751 petition jointly. We will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.
Upon receipt of the final divorce decree or annulment within the specified time period, we will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.
As a permanent resident, you should have received a green card. This card will continue to prove that you have a right to live and work in the United States permanently. If you file Form I-751 on time, we will extend your conditional resident status until a decision has been made on your application. You will be sent a notice reflecting this.
How to Check the Status of Your Petition
To check the status of your petition, see the "My Case Status" link on the USCIS website.
An interview may be required to demonstrate eligibility to remove the conditions on your residence. If an interview is required you will receive an appointment notice telling you when and where to appear for your interview.
How to Appeal
If your application to remove the conditions on your permanent residence is denied, you will receive a letter that will tell you why the application was denied. The process to remove you from the country will begin as soon as your application is denied. You will be allowed to have an immigration judge review the denial of your application during removal proceedings. During this review, we must prove that the facts on your application were untruthful and/or that your application was properly denied. If the immigration judge decides to remove you from the country, you may appeal this decision.
Generally, you may appeal within 30 days after the immigration judge decides to remove you from the country. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C.