How Do I Remove the Conditions on Permanent Residence Based on Marriage?
Background
A lawful permanent resident is given the privilege of living and working in the United States permanently. Your permanent residence status will be conditional if it is based on a marriage that was less than two years old on the day you were given permanent residence. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or receive adjustment of status. Your permanent resident status is conditional, because you must prove that you did not get married to evade the immigration laws of the United States.
* You and your spouse must apply together to remove the conditions on your residence. You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your alien registration card (commonly know as green card) is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status and be removed from the country.
* If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country.
* If your child received conditional resident status within 90 days of when you did, then your child may be included in your application to remove the conditions on permanent residence. Your child must file a separate application if your child received conditional resident status more than 90 days after you did.
Who is Eligible?
You may apply to remove your conditions on permanent residence if:
* You are still married to the same U.S. citizen or lawful permanent resident after two years (your children may be included in your application if they got their conditional resident status at the same time that you did or within 90 days).
* You are a child and cannot be included in the application of your parents for a valid reason.
* You are a widow or widower of a marriage that was entered into in good faith.
* You entered into a marriage in good faith, but the marriage was ended through divorce or annulment.
* You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or lawful permanent resident spouse.
* The termination of your conditional resident status would cause extreme hardship to you.
Please see USCIS Form I-751 (Petition to Remove the Conditions on Residence) for more specific eligibility requirements.
What if I am Late in Applying to Remove the Conditions on Residence?
If you fail to properly file the Form I-751 (Petition to Remove the Conditions on Residence) within the 90-day period before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you. You will receive a notice from the USCIS telling you that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements (the USCIS is not responsible for proving that you did not comply with the requirements).
The Form I-751 can be filed after the 90-day period if you can prove in writing to the director of the Service Center that there was good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status.
How Can I Get a Waiver of the Requirement to File a Joint Petition?
If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time.
You may request a waiver of the joint petitioning requirements if:
* Your deportation or removal would result in extreme hardship
* You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition.
* You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you were battered by, or subjected to extreme cruelty committed by your U.S. citizen of legal permanent resident spouse, and you were not at fault in failing to file a joint petition.
Please see USCIS Form I-751 (Petition to Remove the Conditions on Residence) for more specific information on waivers.
What if I Am in Divorce Proceedings, But Am Not Yet Divorced?
If you and your spouse are unable to apply to remove the conditions on your residence because of divorce or annulment proceedings, you may not apply for a waiver of the requirement to file a joint petition, based on the “good faith” exception. You may not file for the waiver until after your marriage has been terminated.
Will I Get a Work Permit?
As a legal permanent resident, you should have received a permanent resident card. This card will continue to prove that you have a right to live and work in the United States permanently. If you file your USCIS Form I-751 (Petition to Remove the Conditions on Residence) on time, the USCIS will extend your conditional resident status for up to 12 months while your Form I-751 petition is under review.
How Can I Appeal?
If your application to remove the conditions on your permanent residence is denied, you will receive a letter that will tell you why the application was denied. The process to remove you from the country will begin as soon as your application is denied. You will be allowed to have an immigration judge review the denial of your application during removal proceedings. During this review, the USCIS must prove that the facts on your application were untruthful and that your application was properly denied. If the immigration judge decides to remove you from the country, you may appeal this decision.
Generally, you may appeal within 33 days after the immigration judge decides to remove you from the country. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Washington, D.C. For more information, please see, How Do I Appeal?.
Immigration and Naturalization Service
HQADN 70/23.12
425 I Street NW
Washington, DC 20536
April 10, 2003
MEMORANDUM FOR REGIONAL DIRECTORS SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
FROM: William R. Yates /s/ Janis Sposato
Acting Associate Director, Operations
Bureau of Citizenship and Immigration Services
SUBJECT: Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage
Background
The Immigration Marriage Fraud Amendments of 1986 (IMFA), Pub. L. 99-639 (November 10, 1986), were enacted to combat fraud perpetrated by aliens who marry only to obtain immigration benefits. The IMFA amended the Immigration and Nationality Act (Act) by adding a new section 216, which imposes an initial 2-year period of conditional residency on a person who acquired permanent resident status based on a recent marriage. Section 216 also provides a comprehensive procedure by which a conditional resident may have these conditions removed following approval of a petition filed jointly with the citizen or lawful permanent resident spouse, or after approval of a waiver of the joint petitioning requirement (both filed on Form I-751, Petition to Remove Conditions on Residence). Section 216 further mandates termination of the conditional resident’s status if he or she fails to comply with the requirements for removal of the conditions at the end of the 2-year period. Finally, section 216 allows an alien whose status has been terminated to ask the immigration judge to review this decision during deportation proceedings.
In recent months, several questions have been raised regarding whether a conditional resident can file a waiver of the joint petitioning requirement on Form I-751 after commencement of divorce or annulment proceedings but prior to final termination of the marriage. This memorandum clarifies the Immigration and Naturalization Service’s (Service) position on this issue.
Filing a Form I-751 prior to final termination of the marriage
According to section 216(c)(4)(B) of the Act, a waiver of the joint filing requirement may be granted if the alien spouse can establish that “the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1)”. The statute clearly requires that the marriage already be terminated and, thus, the mere commencement of divorce proceedings is not sufficient. Further, in Matter of Anderson, 20 I&N Dec. 888 (BIA 1994), it was determined that an alien spouse:
[W]as ineligible to apply for a waiver under section 216(c)(4)(B) [of the Act] because she remained married to her husband . . . if the respondent had become statutorily eligible to apply for the section 216(c)(4)(B) waiver by virtue of changed circumstances, i.e., through the termination of her marriage . . . she could have sought a continuance from the immigration judge to pursue her alternative application with the Service.
In addition, the instructions to the Form I-751 clearly state that:
[Y]ou may apply for a waiver of th[e] joint filing requirement on this form if . . . you entered into the marriage in good faith, but the marriage was later terminated due to divorce or annulment . . . If you are filing to waive the joint filing requirement because your marriage has been terminated, also submit a copy of the divorce decree or other document terminating or annulling the marriage with your petition.
As such, an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge..