The answer is no, not if the marriage was entered into in good faith. A US Citizen marries a foreign national. We know that marriage alone does not give any legal immigration status to her spouse. She then files a petition for him and he ultimately becomes a Lawful Conditional Resident as opposed to a Lawful Permanent Resident, if the marriage is less than two years old. He remembers that at the interview before USCIS (United States Citizenship and Immigration Services, the sub-agency of the Department of Homeland Security that adjudicates applications for residency among others) that the Officer told him that his card would only be valid for 2 years. That he would only be a conditional resident, and that in 1 year and 9 months he would have to submit a new application (which is form I-751) to remove the conditions and submit a lot of proof that the marriage is still valid.
In our story, unfortunately he was not one of Keen Law Offices' former clients, or he would know to contact us and retain us 6 months prior to the expiration of his conditional status, and we would begin to prepare his application. His marriage began to fall apart shortly after the marriage. He was divorced a year after he got his greencard.
He knows his card is going to expire. But he is no longer married, and he remembers what the officer said. How can he ever prove that he is still with his wife? Surely, he thinks, he will lose his residency.
Let's assume he comes to Keen Law Offices. We will happily give him advice and let him know that he can still file the form I-751, and that he does not need to still be married to keep his residency. We would explain to him the following about his conditional residency.
Requirements for Conditional Residents
90 days before the termination of their conditional status, they must file a Form I-751 Petition to Remove Conditions with USCIS. The form can be found on the uscis.gov website, as well as the current filing fee and mailing address.
This applies to Conditional Residents who adjusted status from within the United States as well as those who went to the consulate and did Consular Processing to get their visa.
If the I-751 is not timely filed, then his status will terminate and he can be placed into deportation proceedings.
There are two ways to file the I-751 Petition - Jointly with the sponsoring spouse or Separately, while requesting a waiver for the joint filing requirement or individual filing.
Filing Jointly While still married
If the Conditional Resident is still married, then he should also include much of the same type of proof of marriage he submitted previously, except it should be updated. This article will not focus on how to prove the bona fides of a good faith marriage, but some examples are proof of co-mingling of finances such as joint taxes, joint insurance of all types, joint lease or mortgage, joint car registration, and joint bank accounts. Other forms of proof are helpful as well.
Separate or Individual Filing
Even if the parties are divorced, or if the conditional resident cannot file together with the spouse, the I-751 Petition may be approved under several circumstances.
US Citizen Spouse has died
If the US Citizen spouse passes away during the conditional residency, then the conditional resident can immediately file the I-751 individually. There is no need to wait until 90 days before expiration of the conditional residency.
Parties are divorced
Once the parties are divorced, then the Conditional Resident can immediately file the Form I-751 Petition to Remove Conditions. There is no need to wait until 90 days before the expiration of their conditional status.
Parties are separated, but not divorced
Unfortunately, if the couple has separated and not yet divorced, the I-751 will not be approved. I have seen many couples in this situation. Some states require a lengthy time for a divorce, such as six months, and that may not allow for the decree to issue before the I-751 needs to be filed. If this is the case, timing can be important and either a divorce should be obtained, or an attorney should be consulted to avoid cancellation of the conditional resident's status. It is never a good idea for a couple who is having problems to fabricate a happy marriage just to get the conditional residency moved to a permanent residency. USCIS and the law allows for marriages that were valid at their inception but later failed to happen. A conditional resident in a failed marriage can still remove the conditions and become a lawful permanent resident.
Battered Spouse exception
If the conditional resident has been abused or subjected to extreme cruelty, then it is possible to file individually as well.
A conditional resident can file individually if he or she can show it would result in extreme hardship to deny the Petition.
What Happens After the Filing
As is normal with most filings with USCIS, once the I-751 is filed, a receipt notice will arrive as well as a biometrics notice. IMPORTANT: The I-751 receipt notice extends the validity of the conditional residence for another one year. While USCIS processes the I-751, the Conditional Resident doesn't have to worry about his expiring greencard as it will be extended another year.
There is often no interview at the local USCIS field office if the case is strong. Sometimes a case is weak where there is little evidence of cohabitation and little or no co-mingling of assets. If these are issues, or if there are other concerns, then an interview will be required at the local Field Office, and the Conditional Resident will have to appear. If approved, a new greencard will be issued, and it will expire in ten years. The now-Permanent Resident should plan on applying for US Citizenship - in three years from the date of residency if married to a US Citizen, or in five years if not married to a US Citizen. If denied, the Conditional Resident loses his status and will be placed into immigration court proceedings.
What if it has been years and the conditional resident never filed to remove the conditions?
This is more common than some would think. I have assisted people who have let their conditional residence lapse many years in the past. One client came into my office who had let the residency lapse more than ten years! She had been divorced after her spouse had been abusive. She thought she was illegal and would be deported if she came forward. I was pleased to help her submit a late-filed I-751.
The law allows for late-filed I-751's. Under the Immigration and Nationality Act Section 216(d)(2)(B), USCIS can still accept and adjudicate the I-751 if the conditional resident has shown good cause and extenuating circumstances for failure to file the petition during the required 90-day period. A good explanation will most of the time result in an accepted I-751.
Sometimes USCIS issues a 10-year card instead of a two-year conditional residency card. The recipient of the card may think he is lucky and he is saved from removing the conditions. However, it can cause serious problems. One applicant was given a ten-year card. He should have been issued a two-year card as his marriage was new. When he applied for naturalization, he was denied initially due to the failure to remove conditions. If a ten-year card is issued when it should be a two-year conditional card, it should be corrected immediately.