Which Alien Spouses are Subject to Conditional Permanent Residency?

When an alien becomes a lawful permanent resident based upon his or her marriage to a U.S. citizen or lawful permanent resident (LPR) spouse, the alien usually becomes a “conditional permanent resident” for two years. The alien's minor children may also come as conditional permanent residents. (Please note that this article only deals with questions about conditional permanent residency through marriage-based petitions, and does not address conditional permanent residency related to the EB5 immigrant investor classification [see article]).

Section 216(h) of the Immigration and Nationality Act (INA) lists the classes of aliens who become conditional permanent residents (instead of regular lawful permanent residents) upon the approval of an immigrant visa or adjustment of status based on a qualifying marriage. In each of the three cases listed below, the alien only becomes a conditional permanent resident instead of a full lawful permanent resident if the marriage “was entered into less than 24 months before the date the alien obtains such status by virtue of such marriage…” INA 216(h)(1). That is, if an alien obtains status through a marriage-based petition but has been married to the petitioner for more than 24 months prior to the acquisition of such status, he or she will be eligible to become a lawful permanent resident without conditions. Below, you will find the three classes of beneficiaries of spousal/fiancee-based petitions who become conditional permanent residents if the qualifying marriage is less than 24 months old either on the date the adjustment of status is granted, or the alient arrived and is addmitted into the USA as an LPR on his or her immigrant visa, whichever is applicable:

An alien who obtains status as the immediate relative spouse of a U.S. citizen (INA 201(b))
An alien who obtains status as the fiancee or fiance of a U.S. citizen (INA 214(d))
An alien who obtains status as the spouse of a lawful permanent resident (INA 203(a)(2))

Furthermore, the son or daughter of an alien who obtains conditional permanent residence based on one of the three above cases also becomes a conditional permanent resident if he or she obtains status through the principal beneficiary. INA 216(h)(2).

One question we see often is whether the following-to-join spouse of an alien who obtains lawful permanent resident is subject to the conditional permanent resident rules. To illustrate, let us use two examples. In the first case, the principal alien obtains lawful permanent resident status through one of the employment-based preference categories and his or her spouse seeks to follow to join as a derivative. In the second case, the principal alien obtains lawful permanent residence through one of the family-sponsored preferences and his or her spouse seeks to follow to join as a derivative.

The answer for both cases is the same — following to join spouses of aliens who are obtaining permanent resident status in a different classification are not subject to the conditional permanent residency provisions set forth in INA 216. INA 203(d) provides that “[a] spouse or child … shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa … be entitled to the same status, and the same order of consideration provided in the [provision under which the principal is eligible for LPR status], if accompanying or following to join, the spouse or parent.” Section 25.1 of the United States Citizenship and Immigration Service's (USCIS's) Adjudicator's Field Manual (AFM) affirmed this interpretation, and added broadly that alien dependents accompanying or following to join a principal alien are not subject to conditions on permanent resident status unless they are the beneficiary of a marriage-based petition.

Thus, the conditional permanent residency rules in INA 216 only apply to immigrant visa petitions based on marriage — that is, a U.S. citizen or lawful permanent resident petition to accord status to his or her alien spouse based on their marriage. Furthermore, the marriage must be less than 24 months old at the time of the approval of an immigrant visa or adjustment of status in order for conditions to attach. If an alien obtains lawful permanent status through a different petition and his or her spouse is following to join, the conditional permanent resident provisions of INA 216 do not apply.