Removing Conditions on Permanent Resident Status Derived from Marriage

Conditional residence, myattorneyusa.com

 

Introduction

If an alien obtains status through marriage to a U.S. citizen (USC) or lawful permanent resident (LPR), he or she will be granted conditional residence (CR) status rather than status as an LPR if the marriage was entered into less than 2 years before the grant of status. Derivative beneficiaries of the alien will also be CRs. A CR may apply to have the conditions removed on his or status within 90 days of the 2-year anniversary of the grant of CR. This article will discuss the rules and process for removing the conditions from permanent resident status in this scenario.

Conditional Residence — Statutory Background

The statutory provisions regarding CR status are found in section 216 of the Immigration and Nationality Act (INA) [link]. Aliens and associated derivatives who obtain status from a marriage that is less than 2 years old be granted CR status for two years instead of LPR status [INA § 216(a)(2)(B)]. Within 90 days of the 2-year anniversary of the marriage, the alien may file to have the conditions removed from his or her permanent resident status [INA § 216(d)(2)(A)]. This 90-day period may be tolled if the alien is an active duty member of the U.S. Armed Forces and is serving abroad [INA § 216(g)(1)]. In order to have the conditions removed, the alien and his or her petitioning spouse must jointly file a Form I-751, Petition to Remove the Conditions of Residence with his or her petitioning spouse unless the petitioning spouse is deceased [INA § 216(c)(1)(A) and (B)]. There are limited hardship waivers available to the requirement that the Form I-751 be jointly filed [INA § 216(c)(4)(A)-(D)]. The alien spouse will lose CR status and be ineligible to adjust if he or she fails to file the Form I-751 in a timely manner or fails to satisfy the joint-filing requirement and does not obtain a waiver of the requirement.

There are three grounds under which DHS may terminate CR status before 2 years:

The marriage was entered into for purpose of procuring an alien's admission as an immigrant [INA § 216(b)(1)(A)(i)]; or
the marriage has been judicially annulled or terminated other than through the death of a spouse [INA § 216(b)(1)(A)(ii)]; or
a fee or other consideration was given (other than attorney fees) for the filing of petitions concerning the marriage [INA § 216(b)(1)(B)].

However, see INA §§ 216(c)(4)(A)-(C) to see limited scenarios in which a CR may avoid having his or her status terminated in the event of a divorce (also applicable for exceptions from the joint filing requirement):

(A) Extreme hardship would result in the event of the alien's removal,
(B) The marriage was entered into in good faith and was terminated through no fault of the CR,
(C) The marriage was entered into in good faith, but the CR and/or child was subject to battery or extreme cruelty by the spouse.

Application Process for Conditional Residence

Along with the Form I-751, the CR and his or her spouse must submit evidence to demonstrate that the marriage was not entered into for purpose of circumventing U.S. immigration laws. Regulations found in 8 C.F.R. § 216.4(a)(5) [link] list the following as evidence that may satisfy this requirement:

(i) Documentation showing joint ownership of property;
(ii) Lease showing joint tenancy of a common residence;
(iii) Documentation showing commingling of financial resources;
(iv) Birth certificates of children born to the marriage;
(v) Affidavits of third parties having knowledge of the bona fides of the marital relationship, or
(vi) Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States.

Note that this list is not exhaustive, and failure to meet any individual criterion does not necessarily mean that a marriage will be found to be invalid. For example, there are circumstances in a legitimate marriage where the couple may not share a residence full time (e.g., due to one or both parties being enrolled in school, financial concerns necessitating that one party work away from the home, etc.).

At USCIS's discretion, the CR and his or her spouse may be called to report for a mandatory interview [8 C.F.R. § 216.4(b)(1)]. USCIS may waiver this requirement if the evidence submitted with the Form I-751 satisfies USCIS that the marriage was bona fide when entered into. If the CR and his or her spouse are separated, the requirement that they both submit to an interview will hold if the CR does not obtain a waiver from the joint-filing requirement. If a CR is summoned for an interview, failure to present for the interview (or not reschedule) will result in the termination of CR status 2 years from the date of the granting of CR status, and the alien would be placed in removal proceedings [8 C.F.R. § 216.4(b)(3)].

Conclusion and Additional Information

The most important component of having conditions removed from permanent resident status is demonstrating that the marriage was bona fide when entered into. To learn more about demonstrating the validity of a marriage, please consult our robust article on marriage fraud [see article]. To learn about USCIS guidance regarding waivers from the joint-filing requirement and other scenarios that stems from a marriage dissolving within the 2-year CR period, please follow this link [see article].

Having the conditions removed from permanent resident status may be relatively straightforward in many cases. However, there are cases where innocent circumstances (see our above examples about not sharing a residence full time) or a lack of supporting evidence submitted with the Form I-751 may call the legitimacy of the marriage into question with USCIS. It is very recommended that CR's and their petitioning spouses consult with an experienced immigration attorney to help minimize the chances for complications in the Form I-751 filing process. If called for an interview, the CR and his or her petitioning spouse should consult with an experienced immigration attorney to ensure that they will be properly prepared to demonstrate the validity of the marriage to USCIS. An experienced immigration attorney is especially important in any scenario where a marriage was dissolved within the 2-year CR period, because the burden will be squarely on the CR to demonstrate that the marriage was bona fide when entered into.