What is conditional resident status?
Conditional resident status refers to a temporary immigration status granted to certain individuals who have obtained a green card (lawful permanent residence) through marriage to a U.S. citizen or permanent resident or through investment in a U.S. business.
This status is known as “conditional” because it comes with certain conditions or requirements that must be met in order for the individual to eventually obtain full, unrestricted permanent resident status.
Conditional resident status is typically granted for a two-year period. During this time, the conditional resident enjoys many of the same rights and privileges as a regular permanent resident, such as the ability to work and live in the United States. However, they must meet specific conditions to remove the “conditional” aspect from their status. After the conditions are successfully removed, an immigrant will obtain a 10-year green card.
The two most common scenarios in which conditional resident status is granted are:
- Marriage-Based Conditional Resident Status: When a foreign national marries a U.S. citizen or permanent resident, they may be granted conditional resident status for two years. To remove the conditions and obtain permanent resident status without conditions, the couple must jointly file Form I-751, Petition to Remove Conditions on Residence, during the 90-day period before the two-year anniversary of obtaining conditional status. They must provide evidence that the marriage is genuine and ongoing.
- Investment-Based Conditional Resident Status: Foreign investors who invest a significant amount of capital in a new commercial enterprise that creates jobs in the United States can obtain conditional resident status through the EB-5 Immigrant Investor Program. After two years of conditional status, they must file Form I-829, Petition by Entrepreneur to Remove Conditions, to demonstrate that they have met the investment and job creation requirements.
If the conditions are successfully removed, the individual becomes a regular permanent resident and is no longer subject to the two-year limit or the specific conditions associated with conditional resident status.
However, failure to file the required petitions or provide sufficient evidence to remove the conditions can result in the termination of the individual’s conditional resident status and potential deportation from the United States.
What is termination of conditional status?
Termination of conditional status refers to the process by which the U.S. government can end the conditional resident status of an individual.
Here are some common reasons for the termination of conditional resident status:
- Failure to Remove Conditions: If a conditional resident does not file the necessary petition to remove the conditions on their status (Form I-751 for marriage-based cases or Form I-829 for investment-based cases) or fails to provide sufficient evidence to demonstrate eligibility for the removal of conditions, their conditional status may be terminated.
- Criminal Activity: Involvement in certain criminal activities, particularly those considered deportable offenses, can lead to the termination of conditional resident status. Serious crimes, such as drug trafficking or crimes of moral turpitude, can result in deportation proceedings.
- Misrepresentation or Fraud: If it is discovered that the conditional resident obtained their status through misrepresentation or fraud, their status can be terminated. This includes providing false information or documents during the immigration process.
- Abandonment of Permanent Residence: If the individual with conditional resident status abandons their intention to live in the United States as a permanent resident, their status may be terminated. This can include prolonged periods of absence from the U.S. without proper documentation.
- Divorce or Annulment: In marriage-based cases, if the marriage ends in divorce or annulment before the conditions are removed, the conditional resident may face difficulties in removing the conditions. However, it is still possible to pursue a waiver of the joint filing requirement in such cases, but it can be more challenging.
It’s important to note that the termination of conditional resident status can have serious immigration consequences, including deportation from the United States.
Therefore, individuals with conditional resident status must carefully adhere to the requirements and conditions associated with their status and consult with an immigration attorney if they encounter any issues or changes in their circumstances that may affect their eligibility for permanent resident status.
The process of terminating marriage-based conditional status by USCIS
USCIS may terminate conditional status at any time during the two-year period if it determines that:
- Conditional resident entered the marriage to procure an immigrant visa
- Marriage has been 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 sends a written notice to the conditional resident notifying them of the intention to terminate the status.
Before issuing an official notice of termination, USCIS must provide the conditional resident with an opportunity to review and rebut the evidence on which it is relying.
After providing the conditional resident an opportunity to rebut the evidence, USCIS may issue a notice of termination.
When USCIS issues the notice of termination, the conditional resident immediately loses all rights and privileges of permanent residency such as employment authorization.
In most cases USCIS will issue a notice to appear (NTA), which initiates removal (deportation) proceedings, at the same time it issues the termination notice.
USCIS decision to terminate conditional resident status cannot be appealed. However, the foreign national may request the immigration judge to review the termination decision in removal proceedings before the immigration court.
After receiving the notice of termination, the conditional resident can file a joint filing 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. We have discussed Form I-751 waiver applications in our Form I-751 Waiver of Joint Filing Requirement guide.
If USCIS approves the waiver, the conditions will be removed and the foreign national will obtain a 10-year unrestricted green card.
Most terminations take place after the two-year conditional period has ended.
If a conditional resident fails to timely file Form I-751 to remove the condition at the end of the two-year period, USCIS can terminate the status at that time.
In the removal proceedings, the burden of proof will be on the foreign national to establish that they have complied with the removal of condition requirements.
Even if the foreign national has satisfied the requirements for removing the
condition, USCIS can still initiate proceedings to rescind the adjustment to permanent residence and subsequent naturalization (U.S. citizenship application).
This can happen when USCIS determined that the foreign national obtained the permanent resident status through a marriage that they entered into to evade the immigration laws.
Related Links:
Form I-751 Waiver of Joint Filing Requirement
Form I-751 – How to Remove Conditions on Your Green Card
Form I-751 Checklist of Supporting Documents (Remove Conditions on Residence)
