Two years after an alien spouse is granted conditional permanent resident status, the alien must file the form I-751 to have the conditions removed from the green card. The I-751 should be filed jointly with the US citizen or lawful permanent resident spouse if the couple remains married at the time of filing. The I-751 should be accompanied by evidence proving the marriage is valid and was entered in good faith. Evidence should include but not be limited to birth certificates for children, apartment lease or mortgage documents, joint bank account records, proof of joint ownership of assets such as cars, proof of living together such as utility, cable, phone or internet bills, and affidavits from neighbors and friends attesting to the validity of the marriage. After the I-751 is filed, the couple will be interviewed by an USCIS officer to determine the validity of the marriage. Generally, the officer will separate the couple and ask each spouse questions about themselves and the other spouse. Questions about scars, tattoos, eating habits and home help the officer determine how well the spouses know each other, and whether they live together.

If the couple cannot file jointly, several waivers are available. First, the marriage was entered in good faith, but the marriage ended in divorce or annulment. Second, the marriage was entered in good faith but the spouse subsequently died. Third, the marriage was entered in good faith, but the alien spouse has been battered or subjected to extreme cruelty by the US citizen or lawful permanent resident spouse. Fourth, it would cause extreme hardship if the alien spouse's permanent resident status were terminated.

If the couple files jointly, the I-751 should be filed during the 90 days immediately before the two year anniversary of being granted conditional resident status. If the alien spouse files the I-751 with a waiver, the I-751 can be filed at any time before the second anniversary of being granted conditional resident status. If the I-751 is not filed before the two year anniversary, the conditional resident will lose his/her status and will begin accruing unlawful presence.

One common scenario involves a couple that is separated, but not yet divorced at the second anniversary mark. The couple will not file jointly because the marriage is no longer viable; however, the alien spouse cannot file for a waiver based on good faith terminated marriage because the marriage has not been terminated yet. Generally, a notice to appear will issue for the alien spouse to appear in immigration court. The alien spouse should ask the immigration judge for a continuance because divorce proceedings are pending. Once the divorce is final, the alien spouse can file for a waiver with USCIS based on good faith terminated marriage.

If a dependent child is granted conditional resident status at the same time as the parent alien spouse, the child is not required to file a separate I-751 petition. If the child received conditional status more than 90 days after the parent, the child must file a separate I-751 to remove the conditions.

The alien spouse need not be physically present in the United States to file the I-751; however, the alien spouse must return for the USCIS interview.  If the alien spouse divorces and conditional resident status terminates, the alien spouse can marry a new USC spouse and adjust status based on the new marriage.

If the I-751is denied by USCIS, the alien will normally receive a notice to appear in immigration court. The immigration laws allow for the immigration judge to review the decision of USCIS and make a determination on his/her own. Oftentimes, USCIS denies a perfectly valid and viable marriage due to a lack of evidence or some discrepancies during the USCIS interview; however, new evidence can be presented to the immigration judge in order to have him/her approve the case.

If you are filing an I-751 or if your I-751 has been denied, contact The Nuñez Firm to discuss your immigration case. Consultations are free and confidential. Managing attorney Jay Nuñez can help you understand your options.

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