Introduction

Under the U.S. immigration laws, some alien spouses and derivative children who obtain permanent resident status through marriage to a U.S. citizen or lawful permanent resident are initially granted “conditional permanent resident status” [see article]. In general, an alien gains conditional permanent residency through marriage instead of permanent residency without conditions “by virtue of a marriage which was entered into less than 24 months before the date the alien obtains such status by virtue of such marriage…” INA 216a(h)(1). That is, if an alien gains permanent resident status through marriage to a U.S. citizen or permanent resident and the marriage occurred less than two years prior to the alien’s gaining status, the alien and any derivative children are conditional permanent residents. An alien must apply to remove the conditions [see category] on his or her permanent resident status within two years. In this article, we will examine what an alien should do if he or she is misclassified as a conditional permanent resident after being admitted or having his or her status adjusted two or more years after the marriage which formed the basis of his or her entitlement to status occurred.

Misclassification as a Conditional Permanent Resident

In some cases, an alien who gains status based on a marriage to a U.S. citizen or permanent resident that occurred two or more years after the alien gained status may be erroneously classified as a conditional permanent resident. The USCIS provides guidance for such cases in its Policy Manual at 6 USCIS-PM I.2(B)(2) [link]:

Officers may encounter cases where the CPR was misclassified when the CPR entered the United States or adjusted status. This generally occurs due to the inspecting or adjudicating officer’s failure to notice that at least 2 years had passed since the marriage providing the basis for status occurred, at the time the noncitizen was admitted to the United States as a permanent resident or adjusted to permanent resident status.

In short, the USCIS may make a mistake in some cases and misread or misconstrue the date on which the alien’s marriage occurred. Note that if the marriage occurred more than 2 years before the alien gains permanent resident status, the alien should be classified as a permanent resident without conditions. The USCIS noted one common reason that this mistake may occur:

Officers who encounter a Form I-751 filed by a noncitizen who was admitted or adjusted on the basis of a marriage less than 2 years old at the time of admission (as a CR1, CR6, C21, C26, CR2, CR7, C23, or C28), but should have been admitted or adjusted on the basis of a marriage that was more than 2 years old at the time of admission (as an IR1, IR6, F21, F26, IR2, IR7, F22, or F27), should update the noncitizen’s class of admission code accordingly.

(Note that the Form I-751, Petition to Remove Conditions on Residence, is the USCIS form that conditional permanent residents must file to remove the conditions on their permanent resident status.)

Whether an alien should be granted conditional permanent resident status or permanent resident status without conditions depends on the age of the marriage at the time the alien is admitted or his or her status is adjusted. Thus, it is entirely possible for a petitioner to file a petition within two years of the marriage occurring but for the petition to be approved more than two years after the marriage occurred. In that scenario, permanent resident status should be granted without conditions.

However, as we will note before, there are circumstances in which the misclassification may have occurred due to incorrect information provided by the alien. This can be fixed in a similar manner to cases wherein the error occurred on the part of the USCIS, but there are, as we will see, some technical distinctions.

Filing a Form I-90 to Fix Misclassification Error

Before continuing, please note that USCIS Forms and their accompanying instructions are updated regularly. We will examine below the form instructions for the most recent (as of December 14, 2023) version of the Form I-90 dated 02//27/17 [link]. However, when filing any form with the USCIS, the filer must make sure to procure the up-to-date form and carefully study the associated instructions. The USCIS website always contains up to date forms and filing instructions [link]. As a general matter, we recommend consulting with an experienced immigration attorney for case-specific analysis and guidance.

In cases where an alien realizes that he or she was misclassified as a conditional permanent resident, he or she “should file an Application to Replace Permament Resident Card (Form I-90) according to the form instructions.”

The 02/27/17 edition of the Form I-90 provides separate instructions for correcting a case where an alien was misclassified as a conditional permanent resident.

Alien Provided Correct Information and USCIS Made a Mistake

If the alien believes that he or she was misclassified as a conditional permanent resident and that the misclassification occurred due to USCIS error — here meaning that the alien provided correct and up-to-date proof of when his or her marriage occurred and the USCIS nevertheless misclassified him or her — the alien does not need to pay a filing fee when submitting the Form I-90. The 02/27/17 Form I-90 instructions provide the following guidance:

File Form I-90 under reason “2.d.”; and
Include a copy of your marriage certificate with your application.

In this case, the USCIS will assess the marriage certificate and consider when the alien was admitted or had his or her status adjusted. Provided that the marriage certificate is satisfactory and consistent with the evidence provided in support of the Form I-130 permanent resident petition, the USCIS will correct the alien’s misclassification as a conditional permanent resident and issue a new Green Card.

Alien Misclassified as a Conditional Permanent Resident But Not Due to USCIS Error

In some cases, the alien may have been erroneously classified as a conditional permanent resident due to deficiencies in the evidence submitted in support of the Form I-130. In this case, the alien must:

File Form I-90 under reason “3.e.”;
Submit original marriage certificate or applicable documents showing the date on which the marriage occurred; and
Include filing fee.

In this scenario, the alien must pay the Form I-90 filing fee. The USCIS will review the information and, assuming the information establishes that the alien’s marriage occurred two or more years before his or her admission or adjustment of status, the USCIS will issue a new Green Card indicating that the alien is a permanent resident without conditions.

Misclassification as CPR and Naturalization Eligibility

Regardless of the cause of misclassification, the USCIS Policy Manual provides that “[t]he misclassification of the noncitizen does not render the noncitizen’s admission or adjustment unlawful, and the noncitizen remains eligible for naturalization, if otherwise qualified, even if a Form I-751 is not filed or approved.” 6 USCIS-PM I.2. The USCIS Policy Manual chapter on naturalization provides specific guidance to officers adjudicating naturalization applications filed by aliens who were misclassified as conditional permanent residents: “If the record indicates that the noncitizen spouse was admitted or adjusted as a spouse of a U.S. citizen married less than 2 years at the time of admission (CR-1 or CR-6), but should have been admitted or adjusted as a spouse of a U.S. citizen married more than 2 years at the time of admission (IR-1 or IR-6), the officer may update his or her spouse’s class of admission code accordingly. The erroneous classification of the noncitizen spouse as a CR-1 or CR-6 instead of an IR-1 or IR-6 does not render this or her admission or adjustment unlawful. In addition, the applicant would be eligible for naturalization even if a Form I-751 was not filed or approved.” 12 USCIS-PM D.2(A)(2). In short, if an alien who should have been classified as a full permanent resident was mistakenly classified as a conditional permanent resident, he or she will be eligible for naturalization without needing to petition to remove conditions provided that the USCIS is satisfied that he or she was misclassified as a conditional permanent resident. With that being said, we strongly recommend that an alien who believes that he or she was misclassified as a conditional permanent resident to be proactive in addressing the error.

Although this article is about aliens who are mistakenly classified as conditional permanent residents, we note that the USCIS Policy Manual’s chapter on naturalization also addresses the reverse scenario wherein an alien who should have been classified as a conditional permanent resident was mistakenly classified as a permanent resident without conditions. In this scenario, “the officer should request the submission of a Form I-751 and adjudicate Form I-751 before adjudicating the Application for Naturalization.” 12 USCIS-PM D.2(A)(2).

Conclusion

There are cases in which an alien who should be classified as a full permanent resident is mistakenly classified as a conditional permanent resident. Any individual who believes this may have happened in his or her case should be proactive in addressing the error. We recommend consulting with an experienced immigration attorney from the beginning of the petitioning process, but an attorney may also assist in correcting any post-approval errors with the USCIS.