Removing Conditional Resident Status for Marriage Based Immigrants
September 22, 2000

Obtaining U.S. lawful permanent residence by way of a marriage is not a terribly complicated process, in theory. However, in many ways, the immigration process for foreign spouses can often be a confusing and anxious experience on many levels. Below I will attempt to address some of the more common questions presented to me in my day to day practice with regard to the removal of the conditional resident status for marriage based immigrants.

Why are some immigrant spouses issued permanent, 10 year Alien Registration Cards (or “green card”) and others just a 2 year card?

When the immigrant spouse has been married to their U.S. petitioner husband or wife for more than 2 years at the time they enter U.S. on an immigrant visa (for those undergoing processing at a U.S. embassy or consulate abroad) or are approved for adjustment of status (for those applying for permanent resident processing in the U.S.), the immigrant spouse will be issued a permanent 10 year card. That means the sincerity or bona fides of the marriage that is the basis of their resident status will generally not be scrutinized ever again. The renewal of the card in 10 years is a routine procedure with a simple form to be completed and very few questions to answer.

When the immigrant spouse’s marriage is less than 2 years old at the time they enter on their immigrant visa, or approved for adjustment of status, the Alien Registration Card they will be issued will only have a 2 year validity. That means, toward the end of that 2 year period, and a second INS filing must be submitted and the marriage that is the basis of the resident status will be revisited.

Importantly, though, those who are initially granted permanent, and not conditional, residence still may find themselves answering questions about their marriage if they are interested in obtaining U.S. citizenship. That is, INS officers conducting naturalization interviews often like to inquire into the status of the underlying marriage, especially when it is no longer intact. Citizenship applicants in such cases should be ready to provide detailed explanations, if not also documentation, to convince the interviewing officer that their marriage was entered into “in good faith”.

What form must be submitted in order to request the “removal of their conditional resident status” and the issuance of a permanent card? And when must it be filed?

As the applicant should have been advised when being granted their conditional status, Form I-751 must be filed within the 90 day period prior to their cards expiration. The form is quite simple to understand, and ideally, both the immigrant spouse and U.S. petitioner will be signing the document, assuming the marriage is still intact. Along with the form, the couple must also submit documentation reflecting their co-habitation and shared residence, such as copies of joint bank account statements, tax returns, credit card bills, utility bills, insurance records, photos, joint lease or mortgage documents, etc. If the joint petition is filed with the INS after the required 90 day period, the petition will generally be rejected unless it is accompanied by an explanatory affidavit detailing a “circumstances beyond our control” type excuse.

What about when the couple no longer is living together and the marriage ceases to be viable – does the immigrant spouse still have a way to remove their conditional status and remain in the U.S. as a permanent resident?

The answer is yes. However, the process is not as straight forward as when the couple continues to reside together. More specifically, although the immigrant spouse will be using the same I-751 form in requesting the removal of their conditional status, the basis of the filing will no longer be a “joint petition” but instead a request for a “waiver” (or an excusing) of the joint petition, where only the immigrant spouse’s signature is required.

The INS will grant the waiver request when the applicant can prove:

a) that the underlying marriage has been dissolved and that the relationship was entered into good faith and not just for the purpose of obtaining immigration benefits,
b) that the denial of the waiver request would result in extreme hardship to the applicant and their family, OR
c) the applicant is a battered spouse and was the victim of physical abuse or extreme mental cruelty at the hands of their U.S. petitioning spouse.

In support of the waiver request, the applicant should be ready to submit documentation reflecting that for at least some period of time the couple shared a residence. Just as in the joint petition context, supporting documentation such as joint bank account statements, tax returns, insurance records, credit account statements, photos or other documentation reflecting a shared residence or cohabitation is helpful.

Also important in waiver cases is the submission of detailed affidavits from the applicant, witnesses and sometimes even a mental health professional, attesting to the sincerity of the marriage, the circumstances leading to its breakup, and other factors – depending on the basis of the waiver request. These affidavits are especially helpful when the joint residence documentation described above is not available – as is often the case when the marriage at issue is filled with turbulence or disharmony.

When must the waiver request be filed?

Unlike the filing procedure for the joint petition, a waiver request can be submitted with the INS at any time, DURING OR AFTER, the 2 year conditional resident period.

Why do some people get interviewed and others receive approvals without an interview?

Generally, in joint petition cases, if enough “shared residence” documentation is submitted, the INS will approve the filing without an interview. However, when documentation is deemed lacking, or sometimes even on just a random basis, the INS will schedule an interview at a local INS office.

In waiver cases, with few exceptions, applicants will almost certainly be called for an interview. When called, the applicant must be able to answer detailed questions regarding the history of the relationship and the reasons behind the breakup. It is also advisable that the applicant be ready to present witnesses to back up their story. The interviewing officer may or may not choose to question the accompanying witnesses, but the fact that a witness made a special trip to the INS to support the applicant can only make a positive impression on an INS officer.

What happens if the joint petition or waiver filing is denied?

Under statute and regulation, the party or parties will have a chance to appeal and present their case before an Immigration Judge in a formal, adversarial setting, known as a Removal Proceeding.