Conditional Residence (I751)

When do you get Conditional Permanent Residence?

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.

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. (Note that as per USCIS guidance, the applicant should make sure that he/she proves the marriage from inception. Which means the evidence to be provided with your I-751 form should include evidence of a bona fide marriage from the beginning.)

• 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 can apply for removal of Permanent Residence.

You may apply to remove your conditions on permanent residence if:

1. 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).

2. You are a child and cannot be included in the application of your parents for a valid reason.

3. You are a widow or widower of a marriage that was entered into in good faith.

4. You entered into a marriage in good faith, but the marriage was ended through divorce or annulment.

5. 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.

6. The termination of your conditional resident status would cause extreme hardship to you.

Kindly call our office on 510 742 5887 for more information.

Late filing of the form I-751

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. You should contact our office in this case, our team has successfully processed many removal of conditional residence petitions (form I-751).

I-751 Waiver?

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.

You can file the waiver only when divorce is finalized.

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. However since the 2009 I-751 Memo was issued, if your divorced can be finalized within 87 days after filing, the USCIS will accept the application. In case of an abusive relationship, there is no requirement to have the final divorce decree in order to proceed with the filing of the waiver. For abuses refer to VAWA petitions.

Authorization to work

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. Note as long as the case continues, you have a right to extend the conditional residence by getting an I-551 stamp on your passport subject to only few exceptions.

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. Note that there is no rule to prevent you from filing a new waiver at this point. Before filing an appeal or a motion to reopen make sure you contact our office at 510 742 5887.

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 Immigration Appeals in Washington, D.C. For more information, please contact our office at 510 742 5887.

Testimonial on I-751 Success