Immigration Lawyer’s Guide to Navigating Marriage Based Conditional Green Cards (“Newlyweds”)
My name is Rod Armande and I am an Immigration & Personal Injury Attorney based out of Los Angeles, California. I have prepared hundreds of clients and attended hundreds of interviews with clients who are applying for a marriage based green card, including those who have been married for less than two (2) years.
A marriage based green card will result in a conditional residence/conditional green card (“CR”) if at the time you were granted green card status you were married for less than two (2) years. In other words, the two-year period is measured from the date of the marriage to the date residency is granted. Furthermore, if a person obtained an immigrant visa overseas at a U.S. embassy in a foreign country indicating that s/he is a CR, but s/he entered the U.S. after her/his marriage was more than 2 years old, s/he would enter as a lawful permanent resident (“LPR”) not a CR. A lawful permanent resident does not need to apply to have the conditions removed by way of filing a Form I-751 within 90 days of the second anniversary of grant of CR status. This article will focus on CR status.
For more information on Marriage Based Lawful Permanent Residency see my article by clicking on the following link: https://www.rodarmandelaw.com/blog/immigration-lawyers-guide-to-marriage-based-green-cards.
Otherwise, keep reading below for information on CR status and the ins and outs of filing a Form I-751 to remove the conditions of your CR green card status.
So How Do You Remove the Conditions Of Your Conditional Residency Status?
In general, a petitioner and beneficiary may file a joint petition to remove conditions on Form I-751. The joint petition must be filed within 90 days of the second anniversary of receiving your CR status. If the petitioner or beneficiary is a member of the Armed Forces in active duty status, then the 90 day period may be tolled at the discretion of the petitioner or beneficiary.
What Do You Have To Establish To Have The Conditions Removed?
The petitioner and beneficiary must prove the following:
The marriage was legal;
The marriage has not been terminated (there is no final divorce decree issued);
The marriage was not entered into for the purpose of obtaining residency (immigration benefits); and
No fee was paid (other than attorney fees to assist with the preparation and filing of Form I-751 and the supporting documents).
What Type Of Supporting Documents Should You Include With Your Form I-751?
The petitioner and beneficiary have to do more than just fill out Form I-751. They have to provide supporting documents. Most commonly, they must provide evidence of a valid marriage by providing documents including but not limited to:
Co-owners of property (such as homes, automobiles, and other valuables)
Lease showing joint tenancy;
Shared bank accounts showing commingling of finances;
Birth certificates of children they have together; and
Affidavits from family, friends, and other members of the community who can attest to the nature and extent of the relationship between the petitioner and the beneficiary.
What If Petitioner and Beneficiary Have Separated or Divorced?
If the petitioner and beneficiary have initiated separation or divorce proceedings, immigration will not deny a petition solely based on the fact that the spouses are separated and/or have initiated divorce or annulment proceedings. It is important to note, however, that if the USC spouse did not sign the joint petition (Form I-751), the adjudicating officer will most likely issue a Request for Evidence (“RFE”) to secure the signature. If the beneficiary (the person who holds the CR green card) does not respond to the issued RFE, the petition to remove the conditions may be denied. If the beneficiary/CR does respond but cannot obtain the signature, the case may be denied for lack of proper signatures.
What If Immigration Schedules An Interview?
If the adjudicating officer decides to schedule an interview, they must make a determination within 90 days of the interview. However, take note that if USCIS fails to adjudicate the petition within the 90-day period, it does not result in USCIS’s loss of jurisdiction over the joint petition or the automatic removal of conditions. If the petitioner and beneficiary fail to appear for a scheduled interview, USCIS will typically deny the petition, terminate person’s CR green card status and initiate removal proceedings against the beneficiary by issuing a Notice to Appear (“NTA”).
USCIS May Waive Interviews
USCIS may waive interviews whether they obtained their CR status through Consular Process (at a U.S. Embassy abroad) or AOS inside the United States. Interviews may be waived in the following circumstances:
There is sufficient evidence in the record to establish a valid marriage and that the marriage was not entered into to evade the immigration laws;
There is sufficient evidence for a waiver when a waiver is requested;
There is no indication of misrepresentation/fraud; and
There are no crimes that render the Conditional Resident deportable.
Is There A Waiver Available For The Joint Filing Requirement?
If the United States citizen or legal permanent spouse dies during the two-year period, a joint petition is not required, but the noncitizen must establish that the marriage was legal where it took place and was not entered into for the purpose of obtaining the immigration benefit. Often times, a beneficiary finds herself or himself divorced to the petitioner who helped the beneficiary receive her CR green card status. If the beneficiary and petitioner cannot file jointly, the noncitizen may file a waiver of the joint filing requirement on Form I-751. The I-751 waiver may be filed before, during, or after the 90-day filing window that applies to jointly filed petitions. It is important you hire an experienced immigration attorney to help you with this process as there are a lot of nuances and every case demands a unique strategy to maximize your potential of filing a successful I-751 petition (whether jointly filed or requesting a waiver to the joint filing requirement).
The noncitizen will have to demonstrate the following to obtain a grant of the waiver:
Establish that the noncitizen will suffer extreme hardship if removed;
The qualifying marriage was entered into in good faith, and terminated other than through death of spouse;
The noncitizen spouse was battered or subjected to extreme cruelty (in this case, divorce is not required); or
The United States citizen or permanent resident spouse was in a bigamous relationship subject to battering or extreme cruelty.
What If I Got The Timing of Filing I-751 Petition Wrong?
As stated above, the I-751 joint petition must be filed within the 90 days before the second anniversary of CR status. An I-751 based upon a waiver, however, can be filed before, during, or after the 90-day period. It is very important that you timely file the joint petition or waiver petition because it results in the automatic extension of the noncitizen’s status until the I-751 is adjudicated. Furthermore, the failure to file the joint I-751 petition within 90 days will result in the automatic termination of CR status.
There is a waiver available for failure to timely file the joint petition for good cause and extenuating circumstances. The petitioner must file a written explanation for her or his failure to timely file with the hope that USCIS will excuse the untimely filing. If an explanation is included, the adjudicating officer may grant such a request, deny such a request or issue a RFE. If the adjudicating officer is still undecided, s/he may refer the case to a local office for an interview. It is strongly recommended you seek counsel and hire an attorney to help you with this process. Typically, you will want to include corroborating evidence with your written explanation. The law allows for broad discretion in determining what constitutes good cause including but not limited to hospitalization, long term illness, death of a family member, legal or financial problems, having to care for someone, bereavement, serious family emergency, work commitment, or family member on active duty with the U.S. military.
I hope you found this blog helpful. Once again, I highly recommend you reach out to an experienced immigration attorney to help you or your loved one if you are dealing with the type of issues described in this blog.
For more information on Marriage Based Lawful Permanent Residency see my article by clicking on the following link: https://www.rodarmandelaw.com/blog/immigration-lawyers-guide-to-marriage-based-green-cards.
The content in this blog is for informational purposes only. Nothing stated herein should be construed as legal advice. It is for general purposes only and does not establish an attorney-client relationship. I strongly encourage you to seek legal counsel to assist you with your legal matter.
