If you have been married less than 2 years when your spouse is granted permanent resident status, your spouse will receive permanent resident status on a conditional basis.
You must apply to remove conditional status within the 90-day period before the expiration date on the conditional resident card. If you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal from the United States.
To remove the conditions on residence, you and your spouse must apply together using Form I-751, Petition to Remove the Conditions of Residence. (Note that Form I-90, Application to Replace Permanent Resident Card, is not used for this purpose.)
Removal of the Condition on the Permanent Residence status
As with many immigration laws, the rules regarding the removal of the condition is bases upon fear that if the marriage did not last more than two years, there is a presumption of fraud. In other words, the marriage was entered into, not by love, but merely to obtain an immigration benefit.
If the parties are still married and living together, at the end of two years, then the burden shifts to the government to prove that the marriage was entered into solely for the purposes of acquiring immigration benefit.
In such a case, the couple must jointly apply on Form I-751 to remove the conditions on the spouse's residence. They must apply during the 90 days before the spouse’s second anniversary as a conditional resident. You can tell the date the two years end by looking at the Green Card, it will be printed on the back.
If you fail to apply to remove the conditions in time, the alien spouse could lose conditional resident status and be removed (deported) from the U.S.
If the facts show that the conditional resident has been battered or abused by his U.S. citizen or permanent resident spouse, the alien does not have to wait the two years to file for removal of condition, but may do it any time. However, there is a need to provide convincing evidence to the USCIS. Such as police report and order of protection along with witness affidavit.
If the couple divorces, the alien spouse may apply to remove the conditions on his or her permanent residence at any time after he or she becomes a conditional resident, and does not require the spouse’s signature on the I-751 application. This is called an I-751 Waiver application. Here the burden shifts back to the alien spouse to establish convincingly that the marriage was no entered solely for immigration benefits. In these cases, you do not have to wait the full tow years to file and you do not have to file within two years. It can be filed anytime.
If the alien spouse's child was granted conditional resident status within 90 days after the alien spouse did, then the child may be made part of the alien's application to remove the conditions on permanent residence. However, in cases that the child received conditional resident status more than 90 days after the alien spouse the child must file a separate application.
Articles related to this topic
Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 35 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..