Conditional Permanent Residence Status
Conditional permanent resident status is granted to individuals whose marriage is less than 2 years old at the time of acquiring permanent resident status in the US, or when they receive their green card through marriage.
The difference between a conditional resident and an unconditioned permanent resident is that a conditional permanent resident’s status will expire in two years from when it was given. unless the couple successfully petition to have the condition removed.
To remove the conditions and become an unconditional Lawful Permanent Resident (LPR) with a green card valid for 10 years, you must file Form I-751 as a couple during the 90-day period immediately before the expiration of the 2 year conditional green card.
How to Petition to Remove Conditions on Permanent Residence
As a couple, you and your spouse must file Form I-751, Petition to Remove the Conditions of Residence, during the 90-day period immediately before the expiration of your CR1 green card. If you fail to file Form I-751, then the permanent resident status will be terminated and removal proceedings initiated.
Form I-751 Required Documents
When submitting Form I-751 to remove the conditions of your permanent residence, you must include the following documents and evidence with your petition:
Permanent Resident Card
Copy of your Permanent Resident Card or Alien Registration Card, and a copy of the Permanent Resident or Alien Registration cards of any of your conditional resident children you are including in your petition.
The conditional resident filing this petition must submit two standard passport-style photographs of him or herself taken within 30 days of submission of the petition.
Evidence of Relationship
Submit copies of documents indicating that the marriage upon which you were granted conditional status was entered in ”good faith” and not for the purpose of circumventing immigration laws. Submit copies of as many documents as you wish to establish this fact and to demonstrate the circumstances of the relationship from the date of the marriage to the present date.
Hardship Waiver After Divorce
A conditional resident is allowed to remove conditions on residence after their divorce from the petitioner (or death of petitioner) when it is impossible to file the I-751 joint petition. Under these circumstances, the conditional resident must file his/her petition and request that the joint filing requirement of I-751 be waived (i.e. Hardship Waiver).
Through the Hardship Waiver, the conditional resident can become a Lawful Permanent Resident (LPR). However, the conditional resident must be very careful. The USCIS holds the Hardship Waiver to very high standards and it is not easy to get a waiver of the joint filing requirement. An unsuccessful petition may result in removal proceedings for the conditional resident.
You Must Prove A Good Faith Marriage
If a marriage has been terminated due to death or divorce, and even if the spouse has abused the conditional resident, he/she must still prove that the marriage was entered into with good faith. The conditional resident must still prove that the marriage was not a fraud or sham marriage for the purpose of getting around immigration laws to get immigration benefits. The conditional resident must also prove that the marriage cannot continue through no fault of their own (e.g. abandoning their U.S citizen spouse after receiving conditional status).
Form I-751 offers several options when filing for a hardship waiver after divorce. It is crucial to discuss with an attorney before filing and choosing an option, as there could be significant immigration consequences that differ among the options. These options in general are:
Option A: I entered the marriage in good faith, but the marriage was terminated through divorce or annulment.
Option B: I entered the marriage in good faith, and, during the marriage, I was battered, or was the subject of extreme cruelty, by my U.S. citizen or permanent resident spouse
Option C: The termination of my status and removal from the United States would result in an extreme hardship.
Hardship When Divorce Is Not Yet Final
Sometimes, a conditional resident’s status will expire before they can finalize their divorce from the U.S. spouse. Divorce proceedings involve complex and time consuming issues and might drag out for months. In these cases, a couple options may include:
File I-751 with evidence that you have initiated the divorce proceedings (and perhaps copies of scheduled court dates related to the divorce)
Wait to file I-751 until conditional resident status has expired and you are placed into removal proceedings
If the conditional resident chooses to file Form I-751 with a hardship waiver based on divorce, USCIS will want proof that the marriage has been terminated (e.g. divorce decree or annulment) before it is granted. Therefore, you should provide evidence that the divorce proceedings have been initiated. In most cases, USCIS will mail a receipt notice (Form I-797) that extends the conditional resident’s green card for an additional period of time (usually one year). USCIS will also issue a “Request for Evidence” at a later date that asks for the final divorce decree when available.
Extreme Hardship Waiver – Waiver Without Divorce
One of the most difficult waiver situations is when the U.S. spouse refuses to divorce, or the couple is separated and a legal divorce has not been initiated in court. In this case, the conditional resident must demonstrate “extreme hardship” in order to be eligible to file the I-751 without the U.S. spouse joining. It is very difficult to establish a winning case for an Extreme Hardship Waiver.
In Matter of Munroe, 26 I&N Dec. 428 (BIA 2014), the Board of Immigration Appeals ruled that the pertinent period for determining whether an individual’s removal will result in extreme hardship is the two-year period for which that individual was admitted as a conditional resident. Based on the Munroe decision, the end date of the hardship period is the last day of the two-year period of an individual’s admission as a conditional permanent resident.
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