“Removing Conditions” on two-year Green Card based on Marriage: Questions and Answers
I Have a Two-Year Green Card. How Do I Renew It?
If you have a green card that is only valid for two years, this means that you are a Conditional Permanent Resident. You are not eligible to “renew” your green card under the normal renewal rules for people who have 10-year green cards. Instead, you must first file a special petition to “remove the condition” on your lawful permanent resident status. If your petition is approved, you will then be issued a 10-year green card.
There are two types of people who will have to first remove the condition: 1) people who obtained their green card through a marriage that was less than two years old when their application for residency was approved (this includes children who received green cards through a parent’s marriage) and 2) people who obtained their two-year green card as an EB-5 investor. This article only focuses on people who obtained their green card through marriage.
I Got my Green Card Through Marriage. How do I Remove the Condition?
If you received your green card through marriage and need to remove the condition, the two most common options for removing the condition are: 1) If you and your spouse are still together, you jointly file to remove the condition on your green card; and 2) If you and your spouse are divorced, you (the foreign national) must file for a waiver of the joint filing requirement in order to obtain an unrestricted 10-year green card.
My Spouse and I are Still Married. How Do We File for my 10-year Green Card?
If you are your spouse are still married, then you should file a joint petition together asking United States Citizenship and Immigration Service (USCIS) to remove the condition on your lawful permanent residence. To do so, you are required to file an I-751 petition during the 90-day window before your green card expires. Both you are your spouse will sign the petition and you will need to submit new evidence that you have a legitimate marital relationship. This evidence should focus on the last two years of the relationship, since the green card was granted. While not an exhaustive list, some examples include birth certificates of any children you had together, photographs, joint bank accounts, name changes, leases, state and federal tax returns, any property owned together, utility bills, and insurance policies.
Be sure to review USCIS’s website for complete instructions on the process or contact us if you would like an experienced team of immigration lawyers and staff to assist you in filing your I-751 joint petition.
My Spouse and I are Still Married but We Didn’t File During the 90-day Window. Can We File the I-751 Petition Late?
You may file the I-751 petition late, but if you do so, there is an additional requirement. You must submit proof of “good cause” for your lateness. At a minimum, you will need to submit a sworn, written explanation explaining why you did not file the petition on time. You should also send in evidence that corroborates your explanation for why you missed the deadline. Some examples of good clause for missing the deadline include medical reasons, serious family emergencies, work commitments, or legal or financial problems. Because USCIS has a great deal of discretion about whether to accept a late filed I-751, we highly recommend you speak to an experienced immigration lawyer to help with this process, so that you do not lose your chance to successfully file your petition late.
What Happens if My I-751 is Denied or USCIS Refuses to Accept a Late Filed I-751?
The government can place you in removal proceedings under different scenarios.
-
- If USCIS denies your I-751;
- If you don’t file before your expiration date (this doesn’t happen very often, but the government does have the authority to do so); or
- If you don’t attend your interview that USCIS requested.
In removal proceedings, you have several options. First, if your I-751 was denied you may request that an immigration judge review that decision. You may also file another I-751 if conditions have changed. USCIS must first decide any I-751 that you file, and then the immigration judge will be able to review that decision.
If you filed late and USCIS did not accept your filing, you may present proof to the immigration judge that your reason for filing was for good cause. If the judge agrees with you, USCIS will then have to decide on your case based on the evidence you provided and forgive your late filing.
In immigration court under one of these scenarios, USCIS must issue you a temporary green card stamp and I-94 so that you may lawfully live and work here while you are in immigration court.
If you are in immigration court for one of these reasons or any reason, it is very important that you speak to an experienced immigration attorney as an immigration attorney greatly increases your chances of winning your case.
My Spouse will not Join Me on the Petition. What Should I do?
If your spouse will not be joining you on the petition, then you will have to file a waiver of the joint filing requirement. You will use the same form, the I-751, to do so. Most categories require you to show that you entered the marriage in good faith, or in other words, you married for love and intended to spend the rest of your life with your spouse when you married. For many of the waiver categories, you will need to submit much of the same evidence that a joint filer would file, like birth certificates of children, leases, and joint bank accounts (see above). The waiver application is for people who fall into one of the following categories:
-
-
-
- My spouse is deceased
- My marriage was entered in good faith, but the marriage was terminated through divorce or annulment.
- I entered the marriage in good faith, and, during the marriage, I was battered, or was the subject of extreme cruelty, by my U.S. citizen or lawful permanent resident spouse.
- My parent entered the marriage in good faith, and, during the marriage, I was battered, or was subjected to extreme cruelty by my parent’s U.S. Citizen or lawful permanent resident spouse or by conditional resident parent.
- The termination of my status and removal from the United States would result in an extreme hardship.
-
-
An I-751 waiver petition (any of them) are usually much harder to win compared to the joint petition. We highly recommend speaking to an experienced immigration lawyer before filing one on your own.
I am Filing without My Spouse. When Do I have to File?
Unlike a joint petition, a waiver petition does not need to be filed during the 90-day window. For example, if you are filing because you are now divorced from your spouse, you may file before, during, or after the 90-day window.
Each of the waiver categories has its own requirements for the petition. One of the most common reasons for filing a waiver is because the marriage has ended in divorce. This can get tricky if you are only separated, but not divorced. If you are separated and your spouse will not join you on the petition, then you most likely will need to wait until your divorced is finalized to file your petition with USCIS. Separation and divorce cases are more challenging because the separation or divorce will cause USCIS to take a hard look about whether the marriage was entered into in good faith. Additionally, separation cases are tricky because there is not a clear choice on the form on how to file. Every case will differ based on whether you and your spouse are trying to work it out during your separation, whether you plan on getting divorced, how much time it takes to get divorced where you live, and other factors.
If you are a conditional resident and either separated or divorced, we strongly recommend speaking to an experienced immigration lawyer.
Have There Been Any Changes to the I-751 Process Under the Trump Administration?
The short answer is no, there are not any changes to the law pertaining to conditional residents under the Trump administration. Law pertaining to conditional permanent residents can only be changed by Congress. However, Trump can change how the law is carried out, and we have seen some changes in that respect. I-751s petitions are now under more scrutiny. It takes more evidence to convince USCIS that you have (or had) a legitimate marriage. This remains true for couples who are still married and living together. Because of the extra scrutiny, I-751 cases are taking longer and longer for USCIS to decide. Finally, there have been rumors that USCIS will be requiring everyone to appear for an interview. However, we have not seen this change happen yet.
I Would Like to Speak to An Immigration Lawyer About my Case
We hope this information is helpful to you as a basic guideline to I-751 petitions. The information is not comprehensive, and you may have some more questions. We are more than happy to speak to you about your case. Contact us if you would like to speak to an experienced team of immigration lawyers and staff.
Photo Credit: Zoriana Stakhniv