WHAT IS CONDITIONAL RESIDENCY? DOES THAT APPLY TO ME?
If at the time you received your green card, you were married to your U.S. citizen or lawful permanent resident spouse for less than 2 years, you received “conditional residency.” Conditional residents have the same rights as permanent residents. However, about 21-24 months after receiving conditional residency, a foreign national and their spouse must jointly petition to have those conditions taken off their green card. In other words, a joint petition to remove conditions on residence must be filed within 90 days before the 2 year anniversary of when your green card was issued. The filing deadline is printed as the expiration date on the back of the green card. The proper form to file is Form I-751, along with appropriate evidence of the relationship. (If you instead wish to renew your green card, you must file Form I-90). Through this process, the foreign national will prove to the United States Citizenship & Immigration Services (USCIS) that their marriage is bona fide and not for the purposes of immigration fraud. It is possible that USCIS will schedule an interview on the joint petition. It is also possible to have an interview on a joint petition even if you are separated! Failure to appear at the interview, if one is scheduled, may result in loss of immigration status or even lead to removal proceedings.
WHAT HAPPENS IF I never FILE THE I-751?
Failure to file Form I-751 is a big problem. Conditional residents who do not petition to have the conditions taken off their green card can no longer use it for work or travel. It possible you may be placed in deportation or removal proceedings. It is better to try to file late than never.
can file the i-751 late?
Yes; the phrase “better late than never” applies here! However, USCIS has the discretion to determine whether your late filing is for “good cause.” If good cause is shown, then USCIS may accept your petition. “Good cause” isn’t clearly defined, but USICS policy says that situations like hospitalization, long term illness, obligations with respect to a dying family member, serious family emergencies, work commitments or having a family member in the U.S. military are considered good cause reasons for late filing. Simply stating USCIS did not notify you of the need to file an I-751 is very likely not enough.
my u.s. citizen spouse divorced me before the 2-year deadline.
If your U.S. citizen spouse divorced you before the 2 year time period ends, or even if they are uncooperative in filing the joint petition, you may request a waiver of the joint filing requirement. THis is called as “waiver.” The waiver request is filed on Form I-751 and doesn’t require a different form.
ARE THERE OTHER SITUATIONS THAT ALLOW FOR A WAIVER OF THE JOINT PETITIOn REQUIREMENT?
Yes, For a foreign national to qualify for a waiver of the joint filing requirement, one of the following must be shown:
- The conditional resident’s spouse died;
- The marriage was entered into in good faith but ended by annulment or divorce;
- The marriage was entered into in good faith but the conditional resident’s spouse subjected the conditional resident to battery or extreme cruelty; or
- Termination of the conditional resident’s status would cause them extreme hardship.
IF I FILE A WAIVER, WILL I HAVE TO ATTEND AN INTERVIEW WITH USCIS?
It is possible that USCIS will schedule an interview on the waiver petition. It is more likely in this scenario than if a joint petition is filed. If USCIS is satisfied that the marriage was entered into in good faith and wasn’t an attempt to commit immigration and marriage fraud, it may approve a petition without an interview. Again, failure to appear at the interview, if one is scheduled, may result in loss of immigration status or even lead to removal proceedings.
If you need assistance in preparing Form I-751 and gathering all supporting evidence, please contact me.