I-751 Removal of Conditions

An alien spouse who applies for a green card through marriage to a US citizen in which the marriage occurred within two years of the admission or adjustment of status, will receive a 2-year green card for “conditional” permanent resident status. In order to obtain a 10-year green card to achieve the “unconditional” rights of a lawful permanent resident, the alien spouse needs to file a “joint I-751 petition”  within 90 days of the green card expiration date to remove the conditional status. Dependent children who are admitted as conditional residents based on the parent’s marriage to a US citizen will have to follow requirements similar to their parents to remove their own conditional status.

If the conditional resident is still lawfully married to the US citizen spouse through whom he or she obtained the LPR status, the couple should file the I-751 joint petition. If the marriage has ended due to either the death of the citizen spouse, divorce, or annulment, then the conditional resident alien must seek a waiver of the joint petition requirement. The conditional resident can request that the joint filing requirement be waived, based on any of four grounds:

• The marriage was entered into in good faith, but the spouse has died;
• The marriage was entered into in good faith, but the marriage has been terminated by divorce or annulment;
• The marriage was entered into in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or
• Termination of permanent residency and deportation would result in extreme hardship.

When filing the I-751, the conditional resident is required to submit evidence to prove that the marriage was entered into in good faith. The applicant should submit documents including:

• Mortgage contract or lease showing joint ownership or joint occupancy of a common residence;
• Financial records showing joint ownership of assets and/or responsibility for liabilities;
• Birth certificates of children born to the marriage;
• Affidavits from third parties having knowledge of the marriage;
• Other pertinent documentation establishing that the marriage is legitimate.

If an alien spouse is not yet divorced but is separated from his/her US citizen spouse and his/her 2-year green card is about to expire, USCIS recently changed the policy to allow he/she to file either a joint petition or a waiver for joint filing post separation but prior to divorce. If the alien spouse files a joint petition post separation but prior to the divorce being finalized, he/she will receive a Request for Evidence Notice from the USCIS asking for the divorce decree. The alien spouse petitioner should then submit the divorce decree and request that the case be converted to a waiver case in order to avoid the need to refile the case as a waiver. If the alien spouse files a waiver after separation but prior to final divorce, he/she needs to submit the divorce decree upon receipt of the RFE from the USCIS. If the divorced is not finalized in time to respond to the RFE, the alien spouse’s permanent resident status will be revoked and may be put in removal proceedings.