When an alien obtains permanent resident status based on a marriage that is less than two years old at the time of granting the immigrant status, the alien’s permanent resident status is classified as conditional. Two years after conditional resident status is granted, the green card will expire. The alien must file an I-751 petition to remove conditions on residence during the ninety days immediately preceding the expiration date. If the couple is still married at the time of filing, they should file the I-751 jointly with both spouses signing the form. The couple should include evidence of valid marriage marriage including but not limited to joint ownership of assets and property, lease showing joint tenancy, birth certificates of children born to marriage, mortgage documents, shared car insurance, health insurance, life insurance, commingling of finances, affidavits of third parties that can attest to the couple’s valid marriage, etc.
Conditional resident status came about due to the Immigration Marriage Fraud Amendments Act of 1986.
If a couple files jointly, they must file during the ninety day window or the conditional residence status could be terminated by USCIS. Once USCIS receives the joint I-751 petition to remove conditions, the case is assigned to an adjudicator, who will review the evidence and determine whether an interview is necessary. Unlike the marriage-based green card process, the I-751 process does not include a mandatory interview. USCIS has the discretion to approve the case without an interview. If the adjudicator deems an interview necessary, the case is sent to the Service Center’s adjudications unit, where it is assigned a fraud level of A, B, or C. Fraud level A being the most serious and C being the least suspicious. Fraud level A is assigned when there is insufficient evidence of good faith marriage, a large age disparity exists, the married couple does not live together, a prior I-751 was denied or the petition was filed untimely without a good reason.
If a foreign-born spouse cannot file the I-751 petition jointly, he can file the I-751 by himself. There are several bases for filing non-jointly including extreme hardship, good faith marriage but terminated, and victim of battery or extreme cruelty. When filing non-jointly, the applicant can check more than one box. Additionally, the applicant file before, during or after the 90 day period discussed above.
In extreme hardship cases, the applicant claims that termination of his/her residency status and removal from the US would result in extreme hardship. This is the only basis that does not require the applicant to prove that the marriage was entered into in good faith; however, evidence that the marriage was entered in bad faith may be considered as a matter of discretion. In extreme hardship cases, whether the alien has experienced hardship during or prior to her conditional residency status is irrelevant. The key time period is the future and whether the applicant would experience extreme hardship if removed to her home country. Hardship already experienced can have a bearing on hardship that could result in the future however.
Plenty of marriages do not last more than two years. Even if the couple has the best intentions, a bona fide marriage might fall apart in less than two years. The Immigration Marriage Fraud Amendments Act was not intended to punish unsuccessful marriages, it was meant to prevent marriage fraud. For this reason, the IMFA provides for a waiver if the alien can show that the marriage was entered in good faith and she/he was not at fault in failing to meet the IMFA requirements. There are some important things to consider when filing an I-751 to remove conditions based on a terminated but otherwise good faith marriage. First, USCIS should not consider who filed for the divorce. There are incorrect rumors circulating that if the alien does not file for divorce, the alien’s I-751 will be denied. In the original rules, there was language about the alien terminating the marriage for good cause; however, that set up a “race to the courthouse” situation, and the rules were changed. Second, it does not matter if the US citizen spouse entered the marriage in good faith, only the alien’s good faith intent is relevant. We have represented clients whose spouses seemed to have entered the marriage in order to hold power over the foreign-born spouse, or wanted help paying off debts, etc.; however, we were able to get the cases approved because we could show that our client was the victim of their US citizen spouse’s scheming. Third, USCIS can interview the former US citizen spouse if they feel it is necessary. This can be a problem for the conditional resident, because a vindictive spouse might make up stories in order to hurt the former spouse. Fourth, be careful with property settlement agreements. USCIS adjudicators look at property settlement agreements as a way to determine how much a couple commingled their assets. Finally, even if the divorce decree specifies that one spouse was “at fault” in the dissolution of the marriage or neither spouse was at fault, that determination is not binding on the USCIS adjudicator, who is specifically instructed to make his/her own decision regarding fault or no fault.
The original IMFA did not contain a separate waiver for victims of battery or extreme cruelty. In 1990, the victim of domestic abuse waiver provision was added. Conditional residents filing a non-joint I-751 must prove two main requirements: that the marriage was entered into in good faith and the applicant was the victim of battery or extreme cruelty. Traditionally labeled VAWA (Violence Against Women Act) cases, these can be difficult and emotional cases to prepare. As is the case with any I-751 waiver case, the applicant should seek attorney representation when proceeding with an I-751 victim of domestic violence case. USCIS can call an interview, and having an experienced attorney that knows the law with you will ensure that you are treated with respect. Sometimes, it is a good idea to file a VAWA I-360 at the same time that you file an I-751. The Service Center handling the I-751 case might not have as much experience with domestic violence situations as the Vermont Service Center which routinely handles VAWA claims. We have handled many VAWA cases (both at the I-360 and I-751 level) and Vermont adjudicators regularly exhibit more training and a better understanding of a domestic abuse situation’s dynamics.
If USCIS denies the I-751, the case is referred to the immigration court. The conditional resident should understand that even though USCIS denied the case (and may even state in the denial that the applicant’s conditional resident status is terminated), the applicant remains a conditional resident until an immigration judge says otherwise. This is very important, because the immigration court proceedings could last several years, and the applicant is entitled to work and travel as a conditional permanent resident during that time.
In immigration court, the conditional resident can call witnesses and ask the judge to make an independent decision on the I-751 case. Keep in mind though that the immigration judge cannot make a decision on an I-751 unless USCIS has already denied the I-751. An example may be helpful to clarify. If a man and woman file an I-751 jointly, and the case is denied, the case will be referred to immigration court. If the couple divorces in the meantime, the foreign born spouse must file a new I-751 with USCIS asking for a waiver before having the judge adjudicate the case. The foreign born spouse cannot file the new I-751 directly with the judge. See Matter of Lemhammad.
The Nunez Firm handles all types of I-751 cases every year. Many of our marriage-based green card clients come back to us two years later and ask us to help them with the I-751, and over the last year or so, most of these cases have been approved without interviews. We also handle good faith marriage waivers, domestic violence waivers and extreme hardship waivers. If you are considering the I-751 process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you in our Irvine location and help you better understand the process.