Conditional Residence with Petition to Remove Conditions (Form I-751)

The conditional resident must file a joint petition within 90 days of the 2nd anniversary of the grant of conditional resident status.  A waiver application can be filed outside of this 90-day window.

When a pro se applicant provides us with a Notice of Intent to Deny (NOID) or Request for Evidence (RFE) and a copy of the original I-751 filing, we notice a common trend.  The initial filing contains photos of the wedding, the marriage invitation, the very first lease, as well as other evidence almost identical to that submitted with the green card application.

The key point to remember is that the 2-year period begins counting from the time residency is granted.  So the evidence submitted with the I-751 should not pre-date the approval date of conditional status.  All evidence should be dated after the conditional residence was approved.

With the I-751 petition, the parties must prove that:

• The marriage was legal where it took place;
• The marriage has not been terminated;
• The marriage was not entered into for the purpose of obtaining residency; and
• No fee was paid to the partner

The type of evidence that must be enclosed in the filing is similar to that submitted with the adjustment of status application.  Some of these types of documents might include combined assets, cohabitation, and if the marriage is terminated, the grounds for divorce.  It is not necessary that the applicant be physically present in the U.S. to file the petition as long as the he or she appears for the interview (if applicable).  However, it is never advisable to be outside of the U.S. with an expired conditional residence card (since a person can be put into removal proceedings).

No.  The only notification you will get about the requirement to file I-751 is at the time the conditional residency is granted.  Most people hear “we are approving your green card application today” and do not hear anything after that.  If you continue to listen, the officer will tell you about the I-751 requirement.

It is the conditional resident’s obligation to remember to file the petition to remove his/her conditions.  Failure to file a joint petition within 90 days will result in automatic termination of conditional resident status.

Failure to file a petition within 90 days shall result in automatic termination of conditional resident status!  However, USCIS may waive the untimely filing for “good cause and extenuating circumstances.”

Yes.  When you file your I-751, you will receive a Receipt Notice that generally reads, “your conditional resident status is extended for a period of one year.  During the one-year extension you are authorized employment and travel.”

It is entirely possible that you may or may not receive an interview.  In either instance, you may not hear from USCIS again for over one year

Absolutely!  Conditional residents may file for naturalization while their I-751 is pending.  Remember that the residence and physical presence requirements begin from the time of the conditional resident status.  However, although you can apply for naturalization, your application for naturalization cannot be approved until the conditional residence status is lifted.

If an I-751 is filed jointly, but the couple is separated (living in two separate residences), and or are in a pending divorce or annulment, a Request for Evidence may be issued to the conditional resident requiring him/her to provide a divorce decree.  If a decree is presented within that timeframe, the officer may choose to amend the petition to treat it as a waiver petition.  If the decree is not produced, the officer will adjudicate it a joint petition.

If the couple divorces prior to filing a joint petition, the conditional resident cannot file the I-751 waiver until the divorce is final.  We have seen this issue come up with many cases.

Yes.  There is no limit on the number of I-751 petitions that may be filed.  However, any petitions filed after the first one may be found to be filed untimely (outside of the 90-day window) unless you can prove “good cause and extenuating circumstances” to excuse the late filing.  If it is an I-751 waiver (which can be filed at any time), USCIS will determine if there is additional or different evidence or if it is filed on a different waiver.

If the U.S. citizen or lawful permanent resident dies during the two-year conditional residence period, a joint petition is not required and the waiver provisions do not apply.  The conditional resident must still establish that the marriage was legal where it took place and that it was not entered into for the purpose of obtaining an immigration benefit.

One issue that crops up during the removal of conditions stage (and again during naturalization) is the allegation of marriage fraud for a couple that got divorced shortly after the grant of conditional status.

For example, a couple gets married. After 2 months, the couple files relative petition and the adjustment of status application.  Five months later the application is approved and conditional residence is granted.  One month later, for whatever reason the conditional resident moves out of the marital home.  When it comes time to file the joint petition, the conditional resident has been living separate and apart from his/her spouse for about 23 months.  If the conditional resident files a joint petition and USCIS becomes aware that the couple has not been living together, it will issue a Request for Evidence alleging marriage fraud.

We take the position that as long as the marriage was valid at inception, it is valid for immigration purposes even if the couple were to get divorced as soon as they receive the green card.  Our tagline is “even the best marriages between two U.S. citizens can fall apart in two years.”

There are five different waivers available, four apply to a spouse and one applies to a child:

1.My spouse is deceased;

2.My marriage was entered into in good faith, but the marriage was terminated through divorce or annulment;

3.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;

4.The termination of my status and removal from the U.S. would result in an extreme hardship; and

5.(Child) 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 my conditional resident parent

“Battery” is any type of “unwanted touching.”  For USCIS, this usually means any physical violence committed against you by your spouse. So punching, slapping, pushing, any other infliction of bodily injury.

“Extreme cruelty” can come in many different forms.  It is generally emotional abuse that your U.S. citizen spouse intentionally inflicted upon you in order to dominate, control, or humiliate you. The following are some examples of behavior that conditional residents have used to prove “extreme cruelty,” but every person’s case is different and this list is not exhaustive:

Threatening to physically hurt you or your loved ones, especially if done in order to put you in fear of your spouse.

Threatening to report you to USCIS or any other government agency, or a refusal to jointly file Form I-751 with you.

Threatening to divorce you, especially if divorce is taboo in your culture or religion.

Invading your privacy in order to control you, including reading or intercepting your mail and emails, monitoring your phone calls and computer usage, and snooping in your personal belongings.

Withholding money or food from you as punishment or to control you.

Not allowing you to contact your family or friends or associate with them.

Taking away your means of transportation or important documents (for example, your driver’s license or passport) in order to keep you from leaving the home.

Intentionally destroying or disposing of your personal property.

Repeatedly exhibiting uncontrollable anger or screaming, even knowing that this behavior would hurt and upset you.

Name calling and making cruel insults (both in public and in private) to humiliate you.

For an I-751, you will need to provide as many details and specific instances of your spouse’s abusive actions and how these actions hurt you and controlled your life. It can be painful and emotionally difficult to recount instances of this behavior, but it is necessary in order to convince USCIS to grant you a waiver.

You will need evidence to prove that you were a victim of domestic violence, so you should ideally provide more than just a personal statement. Police reports, medical reports, photographs of injuries, and affidavits from social workers and school officials helpful. Affidavits from others who have firsthand knowledge of the instances of abuse and battery is also helpful.

We work with our client’s situation to build a strong case while being sensitive to the abuse our clients have suffered. In many instances, our clients have not called the police to report the abuse or have documented the injuries by taking photographs or visiting a hospital. We have still succeeded in obtaining approvals in these cases by providing guidance to our clients on how to draft a useful, detailed Declaration that lists and describes in detail all of the instances of abuse.

Termination can occur in five ways:

USCIS can decide to terminate it prior to the 2-year expiration if it determines the marriage was fraudulent, if the marriage was terminated, or if payment was made in connection with the marriage;

USCSI can adjudicate the petition and determine that it is not valid;

The conditional resident fails to file the joint petition within the 90-day window and the late filing is not excused;

Failure of either spouse to appear at the interview (if one is scheduled); or

Withdrawal of support of the joint petition by the spouse

Unfortunately, if the removal of conditions petition is ultimately denied, the applicant will be placed into removal proceedings.   If a conditional resident has a final order of removal, USCS will automatically deny a jointly-filed or waiver petition on the theory that the person is no longer a conditional resident.  Also, once the applicant loses conditional resident status, he or she may be unable to file a motion to reopen before the Immigration Judge to obtain an approved I-751.

The applicant can have his or her case reviewed before the Immigration Judge.  If the Immigration Judge denies the case, it can be appealed to the Board of Immigration Appeals (BIA). A denial at that level can be reviewed by the courts of appeals.

Yes. If conditional resident status is terminated, a person may be able to adjust status if there is a legal basis to do so.  The Board of Immigration Appeals has held that marriage to a new U.S. citizen is allowed since it falls under a different section of the Immigration and Nationality Act.