Who is Conditional Resident
Many foreign nationals who marry a U.S. citizen or someone with a green card must first receive a “conditional” permanent resident status before they can obtain the “unconditional” status.
This conditional status is imposed on foreign nationals who obtain green card based on a marriage that occurred within two years of their:
- Entering the United States on an immigrant visa, or
- Adjusting to permanent resident status within the U.S.
If the foreign national’s spouse’s children obtained immigrant status based on their parent’s marriage, then they will also receive conditional status.
Conditional residents have the same rights, privileges, and responsibilities as other permanent residents.
However, individuals who have conditional permanent residence must take further action at the end of the second year in order to maintain their permanent resident status.
At the end of the two-year period, the couple must file a joint petition (Form I-751) to have the conditions removed.
If USCIS approves this petition, the conditional resident spouse will obtain unconditional permanent resident status and be issued a 10-year green card.
If USCIS denies the couple’s joint petition to remove the condition, the conditional resident loses immigration status and becomes subject to removal (deportation).
Children of Conditional Residents
Conditional resident status also affects children who immigrate to the U.S. within two years of their parent’s marriage to a U.S. citizen or permanent resident.
Like their immigrating parents, these children enter the country as conditional residents and will need to file Form I-751 petition for the conditions to be removed.
If conditional resident parent’s status is terminated during these two years based on divorce, annulment, or a determination by USCIS that the marriage is fraudulent, the conditional resident status of the children will be terminated also.
Termination of Conditional Status by USCIS
USCIS may terminate conditional status at any time during the two-year period if it determines that:
- The conditional resident entered the qualifying marriage to procure an immigrant visa (fraudulent marriage);
- The qualifying marriage has been judicially annulled, dissolved, or terminated, other than through the death of a spouse; or
- A fee or other consideration was given for filing the immigrant visa petition, other than fees to an attorney for preparing the petition.
Before terminating the conditional resident status, USCIS must send a written notice to the conditional resident notifying them of the intention to terminate the status.
Before issuing a notice of termination, USCIS must provide the conditional resident with an opportunity to review and rebut the evidence used to terminate the status.
After providing the foreign national an opportunity to challenge this finding, USCIS may issue a notice of termination.
When USCIS issues the notice of termination, the foreign national immediately loses all rights and privileges of green card status – authorization to reside and work in the U.S.
Usually USCIS issues a Notice to Appear (NTA), which initiates removal proceedings before immigration judge, at the same time it issues the termination notice.
No special procedure exists for administratively appealing a decision to terminate the conditional resident status, but the foreign national may ask an immigration judge to review the decision in a removal (deportation) hearing in immigration court.
After receiving the notice of termination, the conditional resident may file a waiver application (Form I-751, Petition to Remove Conditions on Residence).
These waiver applications can be filed at any time, either before or after the two-year conditional residence period has expired.
If USCIS grants the waiver, the condition on the foreign national’s permanent resident status will be removed and a 10-year green card issued.
If a conditional resident fails to timely file Form I-751 at the end of the two-year period, USCIS can terminate the status at that time.
Removing Conditional Status
Conditional residents must take certain steps to remove the conditions on their residence to keep their legal immigration status in the U.S.
Within 90 days before the expiration date of a conditional green card, the foreign national must file Form I-751, Petition to Remove the Conditions on Residence with USCIS.
The two-year period is not tolled by any time spent by the foreign national outside the U.S.
In other words, the amount of time the conditional resident has spent outside the U.S. during the two years after obtaining conditional residence does not affect the requirement that they file Form I-751 90 days before the expiration date of 2-year green card.
Failure to file the petition or comply with the interview requirements will lead to automatic termination of conditional resident status and the initiation of removal (deportation) proceedings.
Filing the Joint Petition I-751
If the conditional resident is still married to the spouse through whom they obtained immigrant status, and if that spouse agrees to file the petition to remove conditions, then the couple will file a joint petition (Form I-751).
On the form, both spouses must declare under penalty of perjury that they did not enter into the marriage to evade immigration laws.
If the marriage has ended because of divorce, or annulment, then the conditional resident must seek a waiver of the joint petition requirement. It means that the conditional resident will file Form I-751 without their sponsor spouse.
If the conditional resident has filed a joint petition but at the time of the interview is legally separated or is in divorce or annulment proceedings, USCIS will request the final divorce decree and request that the joint petition be treated as a waiver petition.
USCIS issues a Request for Evidence (RFE) granting the conditional resident spouse 87 days to submit the final decree of divorce or annulment.
If the divorce or annulment is finalized within that period and the conditional permanent resident submits the decree, the Form I-751 will be amended from a joint petition to a waiver application without requiring the petitioner to refile a new Form I-751.
Filing for a Waiver of the Joint Petition Requirement
The conditional resident can request USCIS to waive the joint filing requirement based on any of three grounds:
- The marriage was entered into in good faith, but the marriage has been terminated by divorce or annulment;
- The marriage was entered into in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the U.S. citizen or green card holder spouse; or
- Termination of permanent residency and deportation would result in extreme hardship.
The conditional resident may apply for a waiver based on one or more of these grounds.
For example, the conditional resident may claim both the battered spouse and the extreme hardship grounds.
Two of the possible waiver grounds include the requirement that the applicant prove that the marriage was entered into in good faith.
To prove good faith, you can submit the evidence showing the following:
- A sharing of financial assets and liabilities;
- The length of time the couple resided together;
- Birth certificates of children born of the marriage; and
- Any other evidence of bona fide marriage.
The joint petition requirement can be waived if the conditional resident demonstrates that the marriage has ended in either divorce or annulment and that it was entered into in good faith.
The divorce/annulment waiver is available to all conditional residents whose marriage has failed, regardless of who was at fault for the breakup and who initiated the divorce or annulment proceedings.
Under current USCIS policy, conditional residents may apply for this waiver if the parties have separated and one has filed for dissolution or annulment but the decree has not yet been finalized.
USCIS will issue a Request for Evidence (RFE) granting the applicant 87 days to submit the final divorce or annulment decree.
If the divorce or annulment is finalized within that period, the waiver will be reviewed by USCIS based on the evidence provided by the conditional resident.
If the divorce or annulment is not finalized within that period, USCIS will deny the waiver, terminate the conditional residency, and refer the case to immigration court for deportation (removal) proceedings.
Conditional residents who have filed for divorce or annulment and who are approaching the expiration of their two-year conditional residency must make a decision.
If they expect that the divorce or annulment will not be finalized within 87 days of receiving the RFE, they can take the following actions:
- File under one of the other two waivers—battered spouse or extreme hardship—if applicable and then amend the application, or
- File under this waiver once the divorce is final.
Battered Spouse Waiver
The conditional resident may request a waiver of the joint petition requirement based on being a victim of battery or other forms of abuse.
The statute allows this waiver if “during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetuated by their spouse or citizen or permanent resident parent….”
In other words, the conditional resident may request this waiver if the conditional resident or the conditional resident’s child has been abused by the U.S. citizen or green card holder spouse.
The regulations clarify that the abuse waiver is available to conditional residents who:
- may be married and living with the abusing spouse
- be separated
- be divorced, or
- be in the process of seeking a divorce.
Conditional residents who are divorced often request the “divorce/annulment” waiver because that ground has lower proof requirements.
Also, to be eligible for the abuse waiver, the conditional resident must not have departed the U.S. after their conditional resident status has terminated.
Acts that constitute battery or extreme cruelty include, but are not limited to, “any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.”
Acts of violence can include:
- Psychological abuse
- Sexual abuse or exploitation
- Rape, molestation, incest (if the victim is a minor), or
- Forced prostitution
If the conditional resident is alleging physical abuse, they must submit supporting evidence in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency staff.
The applicant should also include a detailed statement explaining the abuse suffered and the other detailed facts to establish eligibility for the abuse waiver.
Extreme Hardship Waiver
The conditional resident spouse may request a waiver of the joint petition requirement based on “extreme hardship.”
Conditional resident may file for this waiver based on hardship either to:
- Children of the marriage, or
- A new spouse
USCIS will take into account only factors that arose after the foreign national’s entry as a conditional resident.
For example, USCIS will not take into consideration a preexisting medical issue that requires medical treatment in the U.S.
On the other hand, medical problems that developed after the conditional resident entered the U.S. would be relevant.
Negative political, social, or economic conditions that have developed recently in a conditional resident’s home country would be relevant too.
Extreme hardship consists of something more than the hardship that persons ordinarily would experience upon being deported (for example, the emotional suffering that accompanies relocating, separation from family and friends, and economic loss).
The following 10 criteria will be considered relevant in determining whether the hardship meets the definition of “extreme”:
- Conditional resident’s age;
- Conditional resident’s ties to family in the U.S. and abroad;
- How long the conditional resident has resided in the U.S.;
- Conditional resident’s health;
- Economic and political conditions in conditional resident’s home country;
- Conditional resident’s occupation and work skills;
- Conditional resident’s immigration history;
- Conditional resident’s position in the community;
- Whether the conditional resident is of special assistance to the U.S. or to the community; and
- Whether the conditional resident could adjust status by alternate means (for example, if they have other family members who can sponsor them for permanent residency)
Conditional residents with health problems that would not receive adequate treatment in their home country have been particularly successful in establishing that extreme hardship makes them eligible for suspension of deportation.
Suffering economic loss does not usually meet the extreme hardship standard, unless the conditional resident can show that it will be impossible for them to find work in their home country.
But when economic hardship is combined with advanced age, illness, or family ties in the U.S., USCIS is more likely to find that the person faces extreme hardship.
Death of the Spouse
The conditions also may be removed if the marriage was entered into in good faith, but the petitioner spouse is deceased.
If filing the I-751 due to the death of the spouse, the conditional resident should submit a copy of the death certificate with evidence of the bona fide marriage.
Form I-751 Filing Fees
The Form I-751 and supporting documentation must be filed by mail with USCIS.
Always check the USCIS website for the most up-to-date mailing address.
If the conditional resident is in removal proceedings at the end of the two-year period, the petition should still be filed with USCIS.
However, the immigration judge has authority to review USCIS decisions regarding the joint petition or the waiver application.
The Form I-751 filing fee is currently $595, plus the $85 cost of biometrics.
Each conditional resident included in Form I-751 is required to submit the additional biometrics fee of $85 (including children).
Always check the USCIS website for the most up-to-date I-751 filing fees.
I-751 Checklist of Required Documents
When filing a joint petition, the following documents may be submitted:
- Mortgage contract or lease showing joint ownership or joint occupancy of a common residence
- Financial records showing joint ownership of assets and/or responsibility for liabilities; birth certificates of children born of the marriage
- Affidavits from third parties having knowledge of the marriage; or “other documentation” establishing that the marriage is legitimate
- Joint tax returns
- Insurance policies
- Joint health care plans
- Evidence that the couple has jointly purchased land or personal property (such as a car or appliances) and of other joint holdings
- Photographs taken together at family and social events
- Evidence of vacationing or traveling together.
When filing for a waiver, documentation must be submitted to prove eligibility for the chosen waiver.
If requesting a waiver based on multiple grounds, documentation should be submitted to establish each ground.
Can Conditional Residents Travel Abroad?
USCIS regulations do not require that either spouse be physically present in the U.S. when the joint petition is filed.
However, the conditional resident must attend the scheduled biometrics appointment and appear for a scheduled interview at the local USCIS office.
Conditional residents outside the United States can file the petition by sending it to the appropriate USCIS address.
After USCIS receives Form I-751 joint petition or waiver application, conditional resident will receive a receipt notice by mail.
The I-751 receipt notice can be presented with the conditional resident’s Form I-551 as evidence of continued status and employment authorization for up to 24-48 months past the expiration date of a conditional green card.
The conditional resident cannot make trips abroad that exceed one year.
What Should I Do if I Missed I-751 Filing Deadline?
If the conditional resident can show that they have good cause for filing a late petition to remove conditional status, USCIS will accept it.
The conditional resident must state in writing the specific reasons why the petition was not filed before the end of the two-year period.
Some examples of what constitutes good cause for late Form I-751 filing include:
- Long-term illness
- Death of a family member
- Recent birth of a child
- Having a family member on active duty with the U.S. military.
If a conditional resident fails to provide a written explanation of good cause for filing late along with the supporting documentation, the petition will be automatically denied.
USCIS will not issue a Request of Evidence (RFE) but will send a denial notice based on the untimely filing.
USCIS customarily accepts late petitions with good-cause explanations that are submitted within a few days or weeks after the deadline.
Usually the Form I-751 requesting a waiver should be filed within the 90 days preceding the expiration date of a conditional green card.
Sometimes, however, it may be appropriate to file for the waiver before or after the 90-day period.
For example, if the couple’s divorce becomes final or the conditional resident is experiencing battery or extreme cruelty by the U.S. citizen or green card holder spouse, USCIS will review a waiver request filed early and, if it approves the waiver, remove the conditional status at that time.
On the other hand, the petitioner may file for a waiver after the 90-day period if the couple initially filed a timely joint petition, but the sponsoring spouse subsequently refuses to cooperate or the couple divorces.
If USCIS denies the joint petition, the conditional resident then can resubmit a new Form I-751 with a waiver request.
Petitions and Waivers Filed for Children
Dependent children of a conditional resident who acquire their immigration status at the same time as their parent may be included in the parent’s Form I-751, whether filed as a joint petition or a waiver.
It does not matter how old the child is at the time the petition is filed.
However, to be included on the petition, the child must have been granted conditional resident status within 90 days of the parent’s being granted the status.
A child who entered the United States more than 90 days after the conditional resident parent entered, must file a separate Form I-751.
The child would have to establish that the parent’s marriage was entered into in good faith and the marriage has not been terminated.
If the parent’s I-751 has been approved, a copy of the parent’s approval notice must be submitted.
The outcome of the child’s I-751 petition usually will have the same outcome as the parent’s petition.
Child must file their own I-751 petition in the following situations:
- Child is not included in the parent’s Form I-751 application
- Parent does not file a joint petition because of death, disability, or health reasons
In those circumstances, the child should submit the parent’s death certificate or evidence showing why the parent cannot file the petition, together with some evidence that the parent’s marriage was bona fide.
In other situations where the parent did not file an I-751 petition, the child would need to submit a waiver request based on any of the permissible grounds.
When a conditional permanent resident child applies separately, based on abuse by the U.S. citizen stepparent or extreme hardship upon removal, USCIS will review the child’s I-751 petition independently of the parent’s case.
After the conditional resident has submitted the I-751 petition (either as a joint petition or waiver), USCIS will send a receipt.
When the conditional permanent residence card expires, this I-751 receipt serves as evidence of continued conditional resident status.
USCIS has discretion to schedule or waive interviews for foreign nationals who file I-751 petitions.
USCIS might waive the interview for cases where:
- The record contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into in order to evade U.S. immigration laws;
- USCIS has previously interviewed the conditional resident;
- There is no indication of fraud or misrepresentation in the I-751 or the supporting documentation; and
- There are no complex facts or issues that require an interview to resolve questions or concerns.
If USCIS decides to require an interview, the couple will receive an interview notice with the date and address of the local USCIS office where the interview will take place.
It’s recommended for a conditional resident who receives an interview notice to bring additional evidence in support of Form I-751.
Waiver of the Interview Requirement
If one of the petitioning parties cannot attend the interview, USCIS may in rare cases waive the interview appearance.
For example, if the U.S. citizen spouse is on active duty in the military and stationed abroad, USCIS could interview the conditional resident without requiring that the citizen spouse be present.
But USCIS still have to be satisfied, based on all the evidence provided, that the marriage was legitimate and that the reasons given for the spouse not appearing for the interview were valid.
Consequences of Failure to Appear
If the conditional resident – or in the case of a joint petition, either spouse fails to appear for the interview, USCIS will deny the petition or waiver application, terminate conditional resident status, and start the removal (deportation) proceedings.
USCIS must provide the conditional resident with written notification of and specific reasons for the termination.
The conditional resident can also submit a written request that the interview be rescheduled or waived.
The USCIS district director may grant the request if they believe there is good cause to do so. In such cases, the notice to terminate may be rescinded.
Approval of the I-751 Petition
If USCIS approves the I-751 petition, the conditional status will be removed and a 10-year green card be issued.
The conditional resident will be eligible to file for naturalization three years after their date of Adjustment of Status or entry as a conditional resident if the foreign national is still married to the U.S. citizen.
Conditional resident spouses granted a waiver of the joint petition requirement because of having been battered or subjected to extreme cruelty by their U.S. citizen spouse or parent are also eligible to naturalize after three years without meeting the marital union requirement.
Denial and Review in Immigration Court
If USCIS denies the I-751 petition, it must provide written notice of the decision stating the reasons for the denial.
The foreign national’s lawful immigration status will terminate, and they will be served with an Notice to Appear (NTA) starting removal (deportation) proceedings.
There is no appeal available from USCIS’s denial of an I-751 petition, but once the foreign national is in removal proceedings, they can request the immigration judge to review the denial.
Denial of the I-751 petition can be reviewed by an immigration judge only if the conditional resident previously filed it with USCIS. Form I-751 petition cannot be filed for the first time with the immigration judge.
The immigration judge should accept all relevant evidence and make an independent determination about whether the joint petition or waiver request should be approved or denied.
If the conditional resident has failed to file a timely joint petition or waiver application, they still may try to file it late with USCIS, even if an Notice to Appear (NTA) has been issued.
USCIS can accept a late filing if the conditional resident shows a good cause.
If immigration court already has the jurisdiction over the case, the foreign national can request the immigration judge to continue the proceedings until USCIS makes a decision.
If USCIS approves the joint petition or waiver application, the immigration judge can terminate the deportation proceedings.
Are Multiple I-751 Filings Allowed?
There are no limits on how many times a conditional permanent resident may file a Form I-751.
A second joint petition or waiver may be filed after the denial of a previous joint petition or waiver application.
This may happen when a joint petition is filed but then the conditional resident and their spouse divorce or domestic violence occurs.
The subsequent joint petition or waiver will also be denied if no different or additional evidence is submitted with the new petition.