An alien married to a US citizen less than 2 years at the time of USCIS making a decision about the good faith nature of the couple’s marriage receives a Conditional Lawful Permanent Resident status. This status only lasts 2 years and the green card expires after said 2 years. The same rule applies to derivative children of foreigners who received green cards through marriage before their 2-year wedding anniversary.
The green card status is conditioned on your remaining in a good faith (real) marriage to continue holding your green card.
But what happens when the clock strikes midnight on the 2 years of your conditional resident status in US? This is the time you must apply to USCIS for Removal of Conditions on your status using Form I-751, Petition to Remove Conditions on Lawful Permanent Status.
Why do you need to wait 2 years before filing for a permanent green card?
The US Congress made conditional lawful permanent residence laws to reduce the amount of fraudulent marriages in the system. They decided that if a couple can last 2 years together and remain married, this defines their marriage as “bona fide” and not a marriage entered purely for immigration benefits.
What should the lawful permanent resident do when their 2-year green card expires?
90 days prior to the expiration of the 2-year green card, the alien spouse and the US citizen spouse must jointly with USCIS Form I-751 to Remove Conditions on the green card status of the alien spouse. With this form, the couple must attach proof of the “bona fides” of their marriage, i.e. proof of living together, spending and mixing their income and assets together, and continuing to be in a stable marriage.
These proofs of the bona fide nature of the marriage are usually things like birth certificates of joint children, joint utility bills listing both spouses’ names, joint leases or deeds for real property purchased together, joint (married filing jointly) tax returns, joint trip itineraries, joint bank statements and credit card statements showing real activity in joint financial accounts, invoices for significant joint purchases, joint insurance policies, life insurance policies and other benefits of the spouses naming the other as the primary beneficiary, at least three witness statements confirming the witness knows the couple and can provide details of their shared lives, and finally photographs depicting the couple and labelled with date, place and identifying information of who is around the couple in these pictures. This list is not all-inclusive and each couple may have their own unique documents to add.
What about same-sex marriage?
USCIS happily recognizes same-sex officiated unions and marriage for the purpose of adjustment of status to green card and removal of conditions.
What if you are no longer with the US citizen spouse?
Not every marriage survives the statutory 2-year period. Sometimes people enter marriage with the best intentions, but life happens. Couples get divorced, people grow apart, one spouse may need to move overseas for work and the green card holder spouse may want to stay. Even worse, after living together for some time, the US citizen spouse may become abusive and subject the alien spouse to domestic violence or other cruel treatment.
For situations where the spouses no longer live under the same roof, immigration law allows filing the I-751 Petition to Remove Conditions based on a waiver of the joint filing requirements.
To qualify for the waiver of the joint filing requirements, the alien spouse must show that they entered the marriage for love and to create a family together and that marriage ended in divorce, and/or that removal would result in extreme hardship to the alien spouse. In addition, a waiver is available based on abuse and extreme cruelty in how the US spouse treated the green card holder spouse. The abuse may be physical, emotional and/or financial.
USCIS has primary jurisdiction over I-751 Petitions. Even if the first joint petition was filed with a US citizen spouse but the marriage fell apart, the alien spouse can either switch the basis for the I-751 petition from jointly filed to a waiver, or re-file a new I-751 petition on their own asking for a waiver.
Many I-751 petitions require the couples to be interviewed by USCIS, and there is now an interview in practically every I-751 Waiver case in the current US immigration system.
At Shepelsky Law Group, we can help you prepare your I-751 petition, whether jointly filed or based on waiver, provide guidance on how to maximize the evidence in your case, and get you a 10-year green card. We have had many I-751 success stories in our practice and invite you to be another one!