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

Our client had been married for 1 year and 10 months at the time of their green card interview. Two months and one 1 week after the interview, USCIS approved the adjustment of status application. Our client was thrilled to receive the approval but for more than one reason!
Since they had been married for two years and one week on the day the officer approved their green card case, our client received a 10-year permanent green card instead of a 2-year conditional green card. The client bypassed having to file Form I-751, Petition to Remove Conditions, paying the fees for the application, the hassle of gathering all of the supporting documents, and possibly the inconvenience of an interview. Like in the game of Monopoly- our client got to “Advance to Go” and collect $200 (or in this case, they got to keep the filing fee for Form I-751) because the officer approved their case one week after their 2-year wedding anniversary!
But for those who received only a 2-year green card, there is one more step before becoming eligible to apply for citizenship… It is the conditional resident’s obligation to remember to file the petition to remove his/her conditions. Failure to file a petition within 90 days shall result in automatic termination of conditional resident status and issuance of a Notice to Appear (NTA) that will provide a date and location to attend court! In the rare instance that USCIS has not issued the NTA, contact us immediately! In the past, we have argued “good cause and extenuating circumstances” and even got an approval for a client that filed 3 years late!!!
Joint Petition to Remove Conditions on 2-Year Green Card to get Permanent 10-Year Green Card (Form I-751)
After a restful sleep, you awake to an Apple (or Google) Calendar alert (or you received a USCIS envelope notice in the mail) notifying you that your 2-year green card is expiring in about 90 days. Yes, it’s that time, yet again, to spend copious amounts of time gathering hundreds of pages of paper to send to USCIS, but thankfully, instead of 50 pages of multiple forms, this time the application process involves only one form, the I-751. Easy enough, right? Well, that depends…
Not always, especially if you move and do not update USCIS. We recommend calendaring the date of expiration and putting a reminder of 90 days prior to the expiration date.
If you become a U.S. resident due to your marriage to a U.S. citizen, you will get a “conditional” green card that expires in just two years. Within 90 days of your green card anniversary (not wedding anniversary), you and your spouse are must jointly file Form I-751, Petition to Remove the Conditions of Residence, with U.S. Citizenship and Immigration Services (USCIS). After your application is approved, your conditional resident status will be converted to permanent residence.
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.
What Can I Expect During This Process and How Is it Different From When I Got My 2-Year Green Card?
A normal straightforward process should go like this: file the I-751, get a receipt notice within 30 days, receive a notice for either a biometrics appointment or a notice that USCIS will “reuse” the biometrics on file, and then nothing for at least 48 months. When USCIS finally pulls your case to review it, you should get an approval. It is DEFINITELY NOT NORMAL to get an interview during this process. In fact, IF you get an interview, it is because there is a “red flag” in your case.
Let’s examine how this process is different from what you went through about 2 years ago. The first time around should have been super easy (especially if you used our law firm!). If you had a straightforward case, you applied, got receipt notices, biometrics appointment, received work and or travel permits, and were approved possibly without an interview, in less than two years. That’s great (if it took longer or were interviewed, that’s okay, at least you were approved).
Well, this process is really different. First, after you file, you will receive ONE receipt notice. USCIS may reuse the biometrics on file, if they are still valid (if expired, you will be scheduled for a new biometrics appointment).
Second, the processing time is at least twice as long! The receipt notice serves as extension of your status for 48 months, yes, FOUR years. Do you know why? Because USCIS is not even going to look at your case for 4 years!!! So unlike the first time around that took one to two years, this will take you twice as long!
Third, apart from the receipt and biometrics notices, if filed correctly, you should not receive an interview notice. IF you receive EITHER an interview notice, or a Request for Evidence (RFE), something has gone drastically wrong, and you should contact us.
Fourth, and MOST important, a denied petition leaves you without any status and that means you WILL be placed into deportation proceedings to argue your case before an immigration judge. Unlike with denied green card applications which may have put you into deportation, denied I751s will 100% land you before an immigration judge. We have at least 2 horror stories from clients who filed on their own and ended up in court, but thankfully, we were able to save them and today they are US citizens!
“This Process Looks Super Easy, I Can Do It Myself!”
Famous last words…sure, some couples who are still married, living together in the same house, having proof of joint financials, travel together, have children together, etc. can present strong cases to USCIS. But what happens to couples who don’t fall in this category?
Conditional status can be terminated, in five different 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 (this happened to a client who was then put into deportation, but we saved him and he is now a USC)
Officers closely examine the documents that you submit. Taxes and bank statements are very telling. “Married filing separate” or “head of household” is sometimes indicative that the couple is not living together. Bank statements that have both names listed may appear helpful, but if the transactions do not reflect use by both spouses, or, there are “transfers” out of the joint account, it clearly means that the couple has individual accounts and the joint account was created for immigration purposes.
Officers also conducts an investigation (without your knowledge) and compares publicly available documentation against the information provided in your filing.
These are the most common cases we see and are retained to handle (apart from our returning clients):
- The couple is living together in a bona fide marriage, but the documentation is weak. This usually arises when, at the time the couple filed the initial green card application, they did not use an immigration attorney, or, the attorney they used did not advise them to create and maintain joint accounts. Now, 2 years later, the couple does not have sufficient documentation to prove that their marriage is legitimate. It’s too late to “create” the joint accounts now, right before filing the joint petition. Their life circumstances are such that they do not have joint accounts, cannot afford to travel, do not have children, and sometimes actually live in different states because of their jobs. These are difficult cases to prove since the process is primarily paper-based (e.g. no interview).
- Things have been bad for a while, but the foreign spouse is “putting up with it” just long enough to file the case jointly and get it approved, after which s/he intends on filing for divorce. Sometimes, the US citizen is complicit and agrees to help the foreign spouse just to get the permanent green card. This approach can be deemed as fraudulent behavior and will arise during the naturalization process.
- The couple filed the case jointly, but after doing so, serious marital problems arose and either one spouse has moved out of the marital home, or, both reside under the same roof but they are living separate lives. In some of these cases, one spouse is contemplating divorce / has asked for divorce or has even filed for divorce. USCIS has access to family court and criminal courts and is aware when complaints are filed.
- After getting the 2-year green card, one spouse (usually the US citizen) has abandoned and/or abused the foreign spouse and wants out of the marriage; s/he has even moved out of the marital residence. This is the most common case for which we are retained and thus far have maintained a 100% approval rate, most often without an interview!
What Do I Need to Prove with my I-751 Joint Petition?
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 very little evidence of the relationship, often it is only a few photos maybe a lease, a bank statement, a utility bill, and possibly a car insurance statement.
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 cover two years’ worth of evidence, which for us, if often hundreds of pages. USCIS will not consider any evidence dated before the green card approval date. All evidence should be dated after the conditional residence was approved.
What Are the Most Common Mistakes that Can Result in Denial of Your Case and Land You in Deportation?
Mistake #1: DO NOT CONFUSE “renewing” a green card with “removing conditional status.” Earlier this year, two clients made the same mistake which landed them into big trouble. Thankfully, one contacted us before they were put into deportation and the other contacted us after being put into deportation but had her case dismissed through a prosecutorial discretion that we made with the Department of Homeland Security (DHS). What mistakes did they make?
If filing jointly with your spouse, Form I-751 needs to be filed within 90 days of the green card’s expiration date. The form cannot be filed one day early, or one day late. This is a strict deadline.
A client contacted USCIS several times for guidance and was told to file Form I-90 to get their “permanent” green card. They listened to the agent and filed the I-90 only to discover that this was the wrong form because they were not “renewing” their green card; they need to apply to “remove the conditions” on their green card. But because nearly 1.5 years passed before USCIS examined the filing, the deadline to file their case had long since passed.
Mistake #2: Another mistake that people make is, either intentionally or unintentionally, lead USCIS to believe that they are living in a “bona fide” marriage when they are not. USCIS does deem it to be a valid marriage if you are still married on paper, but living separate lives (in the same home), or living in separate homes. The most common scenario that we see is that the couple was living in a bona fide marriage with the US citizen spouse when the Form I-751 was filed, but while it is pending, the marriage fell apart, and one spouse moved out.
In two separate cases, our clients told their previous attorneys about their separation from their USC spouses. Their attorneys ignored it, saying that USCIS would “request information.” Well, USCIS did not “request information” because the separation was not disclosed in the joint filing. Consequently, my clients’ jointly filed Form I-751 was approved and the permanent green card “was issued in error.” This error resurfaced when the clients applied to naturalize. Thankfully, we were still able to get our clients naturalized (through much expense and difficulty). USCIS approves these cases very often because the client is not interviewed; the next time this error is discovered is during the naturalization process, at which time, the applicant is barred from becoming a citizen.
Mistake #3: Date of Separation as Listed in the Divorce Documents: This is what we see most often – the “date of separation” listed in the divorce case is always problematic because the time between the date of separation and the date the green card is issued is a “red flag”. Sometimes, clients exaggerate and list a date that is much later so that it “looks good”. This is not a good approach because USCIS ALWAYS finds out the real date. Other times, clients list the actual date, but it is a short time after s/he received the green card (and yes, one year, is considered a “short time”) and this “doesn’t look good” to USCIS.
Mistake #4: Assume that this process will be just as easy. The second mistake that clients make is that they think that since the first green card was so easy, that this process (to get a 10 year green card) is just as easy. This is a misconception – the first green card was easier because you are only being a “test” green card which is only valid for two years. After 2 years, USCIS has the right to take away your green card and will you in deportation. The fact is that you are “petitioning” to remove your conditional status”. And this time, you will be getting a 10-year green card, one step short of naturalizing. The bigger the benefit, the more scrutiny.
I Am Separated, But Not Divorced. Should I File a Joint Petition?
It is not advisable to file a joint petition because you are present to USCIS that you are living in a bona fide marriage with your USC spouse. The easiest way to explain this is – if you were interviewed, and fully disclosed everything going on in your marriage, would USCIS approve the case? For example, if one spouse asked for a divorce and then doesn’t come home at night (but their belongings are still in the house) and you told USCIS about this, the officer would determine that the marriage is not legitimate (even though you are still married on paper).
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 and then your case is “flagged.” 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.
Are there Waivers of the “Joint Filing” Requirement?
A conditional resident must file a joint petition within 90 days of the 2nd anniversary of the grant of conditional resident status (the “since” date listed on the 2-year green card). A waiver of the joint filing can be filed outside of this 90-day window (before or after).
If you are unable to file jointly with your spouse, there are five different “waivers” available, four apply to a spouse and one applies to a child:
- My spouse is deceased;
- My marriage was entered into 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;
- The termination of my status and removal from the U.S. would result in an extreme hardship; and
- (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
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.
These waivers are extremely difficult to prove, and usually advise clients to proceed with the “Divorce” waiver.
- “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.
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 Affidavit that lists and describes in detail all of the instances of abuse.
Can This Process Impact My Chances of Becoming a US Citizen?
Absolutely, and it happens more often than you think.
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 the relative petition and the adjustment of status application. Two years 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 only 1 month since the green card was issued. 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. But this is extremely difficult to prove.
When Should I Contact An Attorney?
Given that the consequence could be deportation, “go with your gut feeling.”
- If you are feeling uneasy, anxious, or nervous, please contact us. You have too much at risk. Even if it’s last minute – In one client’s case, we actually had to file the case within a few days, and we were still able to put in a strong filing (though we and the client worked day and night) and get it approved without an RFE or interview.
- If you have already filed jointly with your spouse, but you are going to separate, OR, have already separated, OR, one of you have filed for divorce, PLEASE contact us.
- Most importantly, IF you get a Request for Evidence OR an interview, PLEASE contact us so we can help put you back on the right track to avoid a denial and deportation.
How We Can Help
- We prepare and submit petitions showing that the couple intended to establish a life together at the time of marriage. Our documentation is so strong that an interview is rarely scheduled.
- We handle cases where the couple, who is still in a legitimate marriage, has unintentionally missed the 90-day filing deadline by proving “good cause and extenuating circumstances”.
- We assist clients who are legally married to their spouses, but do not cohabitate for various reasons. After all, cohabitation and consummation are not absolute requirements.
- For clients who are no longer in a legitimate marriage, we prepare and file waiver petitions (to waive the joint filing requirement). OUR SECRET SAUCE is the “affidavit” that has resulted in countless approvals!