After receiving their green card, most clients wonder about the conditional aspect of it. Quite often they want to know what they need to do in order to receive a permanent green card, and this is where the removal of conditions process becomes relevant. This process can be a bit confusing and complex at times, therefore we recommend booking a consultation with an experienced family-based immigration attorney who can analyze your removal of conditions application, identify any issues that might arise, and prepare a customized legal strategy that would suit your needs. Pandev Law has years of experience with cases involving removal of conditions and the practical knowledge to help you and your spouse as you embark on a new chapter in your life in the United States.
Marriage-Based Green Card
Receiving a conditional or permanent green card through marriage is a rather complex process that involves filing and submitting forms, documents and supporting evidence that would prove to USCIS that the couple applying for a green card has entered the marriage in good faith and will for all intents and purposes live together as a family for the foreseeable future.
The removal of conditions process can take months to complete due to different factors, including processing times, interview and biometrics appointments, possible requests for evidence, and other variables. In the end, if the application is approved, the immigrant spouse is granted a green card that can be either conditional or permanent, depending on the details of the marriage itself.
Conditional Green Card
After the marriage-based green card process is complete, the immigrant spouse is now considered a lawful permanent resident and the family is able to live in the United States. Depending on how long they have been married, the immigrant spouse will receive either a conditional green card or a permanent green card.
If the marriage began less than two years before the application, the foreign national will be granted a CR1, also known as a conditional green card. These conditional green cards are valid for two years and need to be replaced by a permanent one after that period has ended. When that time comes, the couple needs to jointly file Form I-751, Petition to Remove Conditions on Residence. The joint filing should be done before the end of the 90-day period that follows the expiration of the conditional green card. It is absolutely necessary to file this before this period’s ending or the foreign spouse risks being deported back to their home country. After USCIS receives Form I-751, the officers who are in charge of the processing will go over the application, reevaluate the couple’s marriage and decide whether it was and continues to be a real, non-fraudulent (“bona fide”) marriage. This is the process known as “removal of conditions”.
If the marriage began more than two years before the application, the foreign national will be granted an IR1, also known as immediate relative green card and which is truly permanent. This permanent green card is valid for 10 years but it can be easily renewed after that period has ended. Unlike the removal of conditions process, this one is rather simple and doesn’t require the couple to prove the continued authenticity of their marriage to the USCIS officers in charge of their petition.
What Are the Requirements for Removal of Conditional Green Card?
The first and most basic requirement for a removal of conditions is to, of course, be the holder of a conditional green card. Usually, the holder is a foreign spouse married to a US citizen or lawful permanent resident.
The filing of Form-751 is typically done “jointly” i.e., both the foreign national spouse and the US citizen/LPR spouse participate in the application process. Sometimes, however, it is possible for the immigrant spouse to file this petition without their US spouse. Such cases often involve:
- When the marriage ended through divorce or annulment.
- When the immigrant spouse and/or their child were battered or subjected to extreme cruelty by the US citizen or permanent resident spouse.
- The termination of the immigrant spouse’s status and removal from the United States would result in extreme hardship.
If the couple divorced or annulled their marriage, the situation becomes complicated as well but it is possible to receive a permanent green card even after the marriage has ended.
Whether the termination of the immigrant’s status will lead to extreme hardship or not is particularly hard to prove to the authorities. It is not impossible but it usually leads to increased scrutiny by USCIS.
Removal of Conditions Process
When filed with USCIS, the joint petition must be supported by proof that the marriage is valid and that the couple lives and behaves as a married couple. Typical evidence includes birth certificates for the couple’s child/ren, evidence of cohabitation, and the so-called “comingling of assets” which involves proving the ownership of joint assets. Four categories of documentation have been specified by USCIS that can serve as supporting evidence, and USCIS requires the submission of proof from a minimum of two of those categories, although submitting from more than two categories increases the chances of a good outcome.
The four categories are:
- Evidence of Joint Residence;
- Financial Records Indicating Joint Ownership of Other Assets or Joint Liabilities;
- Affidavits from a Minimum of Two Persons;
- Further Evidence of a Bona Fide Marriage.
The first category, evidence of joint residence, can include a copy of the couple’s lease, deed or even a mortgage contract which shows the joint occupancy/ownership of the residence in question.
The second category, financial records indicating joint ownership of other assets or joint liabilities, can include a variety of documentation such as joint bank loans that were co-signed, joint credit or debit accounts, joint tax returns, joint title to property (including vehicles and vacation homes), and many other financial documents.
The third category, affidavits from a minimum of two persons, is used in cases when the couple is unable to provide proof for the first two categories. In a situation like this, the immigrant spouse and the US citizen/lawful permanent resident spouse can submit affidavits from a minimum of two individuals who have known the couple for at least two years. The affidavits need to provide statements that prove the bona fide nature of the marriage, including the fact that the couple has resided together, has been presenting as a couple to other people, and other such evidence.
The fourth and final category, further evidence of bona fide marriage, includes a variety of sources such as affidavits from employers which can provide information about the couple (records of the business personnel that include the individual’s marriage, benefit plans that name one of the spouses as a dependent of the other), insurance policies that involve both spouses, photographs of the couple that include their extended family, evidence of joint vacations and flights, copies of electricity and other utility bills, etc.
In some cases, the removal of conditions process can involve an interview. Overall, the questions can be quite similar to the ones asked during the interview for a green card through marriage but the only goal of the removal of conditions interview is to establish that the marriage is bona fide.
Removal of Conditions Timeline
The removal of conditions timeline is based on the processing time of Form I-751 in cases where the petition is filed jointly with the US citizen/lawful permanent resident spouse. In situations that involve only the immigrant spouse (such as the ones mentioned previously in this article), the timeline can be slightly different. Unfortunately, those cases tend to be unique and a generalized timeline wouldn’t be accurate or appropriate.
After the I-751 has been filed by the two spouses, the immigrant spouse should expect the following timeline:
Within 2-3 weeks of filing
Within this period of time, the immigrant applicant will receive a receipt notice in the mail which is an indication that USCIS received the application and is processing it normally. The receipt notice also extends the immigrant spouse’s status as a conditional permanent resident of the United States for an additional year.
Within 3-4 weeks of filing
Around a month after filing the application, the applicant should receive a biometrics appointment notice. The appointment will include taking the immigrant’s photograph, fingerprints, and signature. An identical appointment is included in the marriage-based green card process so the applicant will already be familiar with the procedure.
After 4-5 months of receiving the biometrics notice
During this 5-month period, the applicant will receive any possible additional notices from USCIS which could include requests for evidence and interview notices to notify the applicant that an interview will be scheduled for them if they have not provided enough evidence with their application. In certain situations where an interview notice is sent to the immigrant applicant, it is usually issued around 5 months after the filing of the application. However, if the case involves a waiver application, the removal of conditions interview scheduling might take a bit longer due to the specifics of the waiver application process.
If the immigrant spouse receives an interview notice, the best decision would be to use the services of an experienced family-based immigration attorney who can help the applicant prepare for an interview properly.
If the applicant does not receive a request for evidence, the processing time for the removal of conditions application should take around 6 to 8 months, meanwhile a waiver application can end up taking up to a year from start to finish.
If there are problems with the application such as requests for evidence, backlog, and unforeseen circumstances, the immigrant spouse will need to apply for a further extension of their conditional resident status in order to be able to remain in the country legally.
Waiver of the Joint Filing Requirement
If the applicant’s marriage to the US citizen/lawful permanent resident spouse has ended, the scrutiny and requirements for the application are much more serious and difficult to navigate. An application that doesn’t involve a joint filing is called an “I-751 Waiver” as it requires the requesting of a waiver of the requirement to file jointly with the spouse. USCIS officers tend to scrutinize and go over I-751 waiver applications a lot more than they do with regular jointly filed petitions for a removal of conditions. It is completely possible to get an approval of an I-751 waiver but the application must be really well-supported and it must include a variety of evidence that would prove to the USCIS officer that the marriage was completely bona fide and entered into in good faith, even though it has since ended.
In some cases, the USCIS immigration officer might feel that the documentation and evidence provided by the immigrant spouse are not enough to prove the validity of the marriage. The usual outcome in a situation like this involves the scheduling of a removal of conditions interview.
The typical time USCIS spends processing waiver applications ranges from 6 months and up to 1 year. The processing time is dependent on the variables of the case and its complexity.
Removal of Conditions After Divorce
If the couple’s marriage ends in divorce or annulment, the immigrant spouse can still apply for a removal of conditions process in order to receive a permanent resident card. In a case involving this situation, the person will need to apply for the aforementioned I-751 waiver and follow the instructions for that procedure.
In general, the applicant can attempt to prove that the marriage ended because of the US citizen/lawful permanent resident spouse. It can include evidence that they are the one who requested the divorce or annulment.
Another piece of evidence that might help the immigrant’s petition is proof that the couple attended marriage counseling and/or any other activities that show that the couple truly made an effort to continue the marriage and fix the situation.
The applicant should also include a copy of the annulment papers or divorce decree, all other evidence as well as the filled out Form I-751 petition.
Removal of Conditions FAQ
What if my spouse dies?
If the immigrant’s US citizen/lawful permanent resident spouse dies before the removal of conditions process can begin, the immigrant spouse’s Form I-751 filing package will need to include the death certificate and all proof of the married life they lead before the individual passed away. In a situation like this, the applicant can file the form before the 90-day period has begun.
What if I was abused or battered during my marriage?
If the foreign national applicant’s spouse was abusive during the marriage, then the immigrant can apply for a removal of conditions without the presence or assistance of the abusive partner. The applicant needs to include proof of the abuse such as police reports, restraining orders, photographs and medical documentation of the injuries, etc. If the abusive relationship was ended via divorce, the divorce decree should be included as well.
What if my marriage ended, but termination of my residency will result in “extreme hardship” to me?
As mentioned above, proving that the termination of the immigrant’s residency will result in extreme hardship is quite tricky and difficult. Unlike in the other situations, the foreign spouse would not be required to prove that the marriage was bona fide and entered into in good faith. In this case, the applicant will need to prove that going back to their native country would result in extreme hardship. The only factors that USCIS takes into account when processing extreme hardship applications are those that have developed after the granting of the green card. One example of a factor that would possibly convince the government to remove the conditions of that immigrant’s green card is the development of a civil war in the immigrant’s home country. In a situation like this, the applicant can argue that returning to their home would put their life at risk and would therefore be the cause of extreme hardship. This is just one of many examples, and an experienced immigration attorney is the best specialist to ask for advice on proving this type of case to the authorities.
In some situations, more than one special circumstance can be valid for the applicant. For example, they could be facing extreme hardship upon returning to their native country as well as abuse from their spouse if the marriage does not end in a divorce or annulment. Fortunately, Form I-751 gives the immigrant the option to check multiple boxes when it comes to these special circumstances.
What happens if I file after the 90-day period?
If the immigrant spouse fails to file Form-751 and all of the supporting documents related to it within the aforementioned 90-day period, USCIS will take several actions as a response. They include:
- Automatically terminating the immigrant’s conditional permanent resident status;
- Beginning removal proceedings against the immigrant;
- Sending a notice telling the immigrant that they have failed to remove the conditions;
- Sending a Notice to Appear at a hearing.
At the hearing, the applicant will have the chance to review and rebut the evidence brought forward by the government as grounds for deportation. In this case, it is the immigrant’s responsibility to prove that they did in fact comply with the law and its requirements.
If the applicant spouse files the form package after the 90-day period, then they need to include a letter that explains why the filing was delayed. If the cause is deemed as plausible and acceptable, USCIS will continue with the removal of conditions process as normal.
How do I appeal a denial of my I-751 petition?
When the applicant receives a denial from USCIS regarding their Form I-751 application, the denial decision usually includes an explanation of the reason for the denial. The government might also issue the immigrant a Notice to Appear (NTA) at court where they would present their case in front of a judge during the removal proceedings. The applicant is allowed to request a review of the I-751 denial from the judge. During the review, the government is required to provide adequate proof that the denial was warranted and the information provided in the application was incorrect.
If the judge decides in favor of the removal proceedings, the immigrant will have 30 days to appeal the court’s decision by filing a form called EOIR-26, Notice of Appeal from a Decision of an Immigration Judge.
Our Marriage Green Card Services
Are you interested in a customized strategy for your immigration case? Are you a US citizen or lawful permanent resident looking for a way to sponsor your spouse? Would you like to learn more about our marriage green card services? We can offer you all of that and more. Pandev Law, LLC has years of experience in immigration law as well as the knowledge and expertise to guide you through your marriage-based immigration case and help you begin your new life as a family in the United States.
If you would like to schedule a consultation with our immigration attorney, follow the link and click on “Schedule a Consultation.” You can also reach us via email at [email protected], or call us at (212) 220-6652.
During your consultation, our immigration lawyer will provide an honest assessment of your case, as well as a recommendation regarding your next steps.
Disclaimer: This blog article is provided by Pandev Law, LLC for general educational and informational purposes only. Although this article discusses general legal issues, it does not constitute legal advice nor does it establish an attorney-client relationship. No reader should act or refrain from acting on the basis of any information presented in this article, or elsewhere on this website, without seeking the advice of appropriate legal counsel, or other professional counsel, licensed in the relevant jurisdiction. Pandev Law, LLC expressly disclaims any and all liability with respect to any actions taken, or not taken, based on any content of this article or website. This blog article may constitute attorney advertising. Prior results do not guarantee a similar outcome.