Under the U.S. immigration laws, those who gain residence through their marriage to a U.S. Citizen are granted conditional permanent residence if their marriage is less than 2 years old at that time. This residence is the same as permanent residence in every way except that it expires after 2 years. In order to continue residence in the U.S., one must file another petition with U.S. Citizenship & Immigration Services (“USCIS”) to remove the conditions on their residence. This is the I-751 petition, and it must be filed in the 90-day period prior to the expiration of conditional residence. If this petition is not filed on time, conditional residence is automatically terminated!
Over the years, I have had a handful of clients who did not understand this. They thought that they simply had to apply to renew their residence with the form I-90. And indeed, USCIS will accept the I-90 form. By the time USCIS denies this application (typically many months after filing), the client’s conditional green card will have already expired and they are now completely without status!
Don’t let this happen to you! This blog post discusses the process of removing conditions on residence, to obtain permanent residence and a 10-year green card.
What is conditional residence?
The two-year conditional residence is for those who have been granted residence through their marriage to a U.S. Citizen, and their marriage is less than 2 years old at the time that they were granted. This process was put in place by members of Congress who were concerned about people getting green cards through marriage. They feared that some people might try to scam the system by hiring a U.S. Citizen to marry them and help them gain lawful immigration status, and apparently these legislators felt that the federal criminal penalties for marriage fraud were not enough of a deterrent. Due to these concerns, they enacted this added restriction into the immigration law.
Aside from the two-year period, this residence is the same as permanent residence in that one can live, work and study in the U.S. They are allowed to travel internationally subject to the same limitations that permanent residents have.
How do I continue my residence beyond the two year period?
In the 90-day period before the green card expires, residents must petition USCIS to remove the conditions on their residence with form I-751. The expectation is that this form will be filed jointly with the U.S. Citizen spouse. Along with the form, applicants must include evidence that their marriage is in good faith and that it has continued over the last 2 years.
Upon receipt of the petition and supporting evidence, USCIS will issue a receipt notice that contains language extending the green card for an additional period of time (at the moment, they are issuing 4-year extensions). During this time period, residents can use this original letter (issued on official USCIS stationery), along with their expired green card and their passport, to travel internationally. If USCIS takes longer than 4 years to process the I-751 petitions, residents can obtain a passport stamp from USCIS as evidence of their continuing residence for purposes of work and international travel. A passport stamp is also required if the resident has lost their expired green card, even if they are still within the 4-year extension period listed on the I-751 receipt notice.
My spouse and I have separated. Can I still file this petition?
Yes, under some circumstances. USCIS allows a resident to request a waiver of the joint filing requirement (known simply as an I-751 waiver) if they can establish that the marriage was in good faith and one of three circumstances exist: (1) that the marriage ended in divorce; (2) that there was physical abuse or “extreme cruelty” during the marriage; or (3) that there would be extreme hardship if the resident were to be deported.
In these circumstances, USCIS expects to see significant evidence of the marriage, as well as evidence of the divorce, abuse or extreme hardship. This could include affidavits, birth certificates of children born to the couple, and records showing co-habitation, the sharing of financial assets and other aspects of a shared life.
My spouse and I have filed for divorce, but it is not final yet. What should I do?
It is important to still file the I-751 petition prior to the expiration of conditional residence, even if the divorce is not final yet. (Failure to do so results in the termination of your residence). You can submit the final divorce decree at a later date.
I have a divorce nisi in Massachusetts. Is that sufficient to show that I’m divorced?
No. A divorce nisi is a temporary divorce. After 90 days, it automatically becomes a divorce absolute, which USCIS views as a final divorce. At the time that USCIS is deciding your case, it will require a certificate of divorce absolute. You can obtain this from the clerk of the family and probate court in which your divorce took place.
If you did not have a final divorce at the time that you filed your I-751 waiver, you should send a copy of it to USCIS when it is issued. USCIS will also send you a Request for Evidence for the divorce at the time that it is ready to adjudicate your petition.
How long does it take for USCIS to decide these petitions?
The processing times are very long for these petitions, well over a year, and often two years or longer! You can view processing times by using this link: https://egov.uscis.gov/processing-times/
I filed my I-751 petition jointly with my spouse, but we have since gotten a divorce. What should I do?
You must notify USCIS of this change in your circumstances, and request that they convert your joint petition to a waiver petition. You should include a copy of the receipt notice from your case, the final divorce decree, and additional evidence that your marriage was in good faith. If your ex-spouse is still supportive of the petition, you might consider including a statement from them as well. These should be mailed to the USCIS office that is processing your petition, typically listed at the bottom of your I-751 receipt notice.
Will I be scheduled for an interview with USCIS?
Although the majority of I-751 petitions are approved without an interview, sometimes USCIS does need to interview I-751 applicants. This typically happens for those who initially gained their conditional residence through a case at a U.S. Consulate, and those who have filed I-751 waiver petitions. During the interview, the officer will ask questions about your relationship, and may want to speak with both you and your spouse. You should plan to bring some updated evidence of your relationship to the interview to give to the officer. For joint petitions, your spouse is expected to attend with you. For I-751 waiver petitions, your ex-spouse is not required to attend, though it is still helpful that they attend in circumstances in which that is possible.
When can I apply for U.S. naturalization?
If you and your spouse remain together, you may be able to apply for U.S. naturalization 3 years after your conditional residence was approved. This is true even if the I-751 petition has not been decided yet. In these circumstances, USCIS will typically conduct an interview on both the I-751 petition and the naturalization application at the same time.
If you and your spouse are not still together, it is best to wait until after the I-751 is approved before applying for naturalization. There are exceptions to that which you should discuss with your attorney.
U.S. naturalization carries many additional requirements beyond those listed here, and you should speak with an experienced immigration attorney to confirm your eligibility before you apply.
What happens if USCIS denies my I-751 petition?
If your I-751 petition is denied, you will be placed in removal proceedings before the Immigration Court, and you will have a chance to renew your petition and ask the Immigration Judge to review the USCIS decision. The Immigration Judge has the authority to reverse the USCIS decision and grant you permanent residence if they disagree with the USCIS decision.
If the Immigration Judge also denies your I-751 petition, you are allowed to appeal that decision to the Board of Immigration Appeals.
Do I need an attorney for the I-751 petition?
Although hiring an attorney is never required and some couples are able to do this petition on their own, immigration matters can be complicated and the stakes are high. Thus, it is a smart idea to hire experienced legal counsel for your immigration matters including the I-751 petition. An attorney will ensure that you are filing the correct form, properly completing the forms, and including the correct supporting evidence. They will also monitor all communications with USCIS, help you respond to Requests for Evidence, assist in preparations for your interview, attend your USCIS interview with you, and if needed, represent you in removal proceedings.
For further reading:
USCIS Form I-751: https://www.uscis.gov/i-751
USCIS Policy Manual: Family-Based Conditional Permanent Residents: https://www.uscis.gov/policy-manual/volume-6-part-i.
The above is not legal advice and should not be acted upon as such. USCIS matters are complicated and carry serious consequences. We recommend consultation with counsel prior to proceeding.