introduction to conditional permanent residence - ILRC

1 Practice Advisory | December 2017 introduction TO conditional permanent residence | DECEMBER 2017 1 I. Overview This practice advisory is designed to introduce practitioners to the concept of conditional permanent residence , and to explain the requirements and processes for removing the conditions on residence , thereby enabling the conditional resident to obtain Lawful permanent residence that can last indefinitely. II. introduction In general, lawful permanent residence (LPR), commonly known as having a green card, lasts until one of three things happen: (1) the person naturalizes and becomes a citizen, or (2) the person receives a final order of removal, or (3) the individual chooses to voluntarily give up her LPR status. However, people who apply for permanent residency based on a marriage to a citizen or permanent resident spouse that is less than two years old at the time their residence is granted receive green cards that are only valid for two years.

2 These people are called conditional permanent Residents. Before their conditional residence expires, they must file an additional application, called a Petition to Remove Conditions on residence (Form I-751) in order to extend their status to indefinite Lawful permanent residence . The reasoning behind conditional permanent residency is to prevent sham marriages, where someone marries another person just to get a green card, and then divorces shortly afterwards. Couples who have already been married for two years or longer at the time the immigrant is granted permanent resident status do not have to go through this extra step in the process. As will be discussed below, the I-751 petition must be filed within a certain timeframe, and there is a different process if the couple is no longer together at the time it is filed.

3 Children of a conditional resident spouse must also go through this process if they immigrate within two years of the parent s marriage to a citizen or LPR. introduction TO conditional permanent residence AND FILING THE PETITION TO REMOVE THE CONDITIONS ON residence (FORM I-751) Sub-title of document would be here and sub-title of document would be here with more sub-title here By Author Name & Author Name introduction TO conditional permanent residence 2 introduction TO conditional permanent residence | DECEMBER 2017 conditional residence expires two years from the date it was granted. For conditional residents who immigrated through consular processing, the date conditional residence began is the date s/he first entered the United States with the immigrant visa. For conditional residents who immigrated through adjustment of status, the date of the grant is the date the person received final approval of the adjustment application from USCIS.

4 In either situation, if the immigrant has almost reached her two-year marriage anniversary to the petitioning spouse just prior to the date her residency may be granted, it may be worth delaying entry to the United States or the adjustment interview, for example, to avoid having to do this extra filing (which, as with most immigration applications, requires supporting documentation and payment of a filing fee at the time of this writing, $595 in addition to $85 biometrics fee). Except for the two-year expiration date, conditional resident status is identical to lawful permanent residence . conditional residents can work, travel in and out of the United States, and count the time they spend as conditional residents towards the residence requirements for conditional residence was added to the Immigration and Nationality Act (INA) by the Immigration Marriage Fraud Amendments of 1986 (IMFA),2 due to Congress concern that many marriages between citizens or permanent residents and foreign citizens may be sham marriages, entered into for the sole purpose of obtaining permanent residence .

5 By requiring conditional residents to file a petition to remove the conditions on residence after two years, proving they are still together or if not, providing a good reason why not, Congress created an additional screening process for those who immigrate through a recent marriage. As mentioned above, individuals who have already been married more than two years when immigrating through a spouse do not have to go through this I-751 conditional residence process. There are a few different ways to remove the conditions on residence , depending on the status of the conditional resident s marriage at the time the waiver is filed: If the conditional resident is still married to her petitioning spouse, she must jointly file the I-751. This means that her citizen or LPR spouse through whom she obtained her status must sign the I-751, in addition to the conditional resident, and must attend an interview on the I-751, if any, with the conditional resident.

6 The joint I-751 must be filed within 90 days of the date that the conditional residence If an applicant misses that deadline, there are some circumstances in which USCIS may accept a late jointly filed I-751 that are discussed below. If the conditional resident is no longer married to her petitioning spouse, she may request a waiver of the joint filing requirement. In this situation, the conditional resident files the I-751 on her own, and she may file the I-751 waiver at any time before, during, or after the 90-day window. An I-751 waiver can only be filed in the following circumstances: introduction TO conditional permanent residence introduction TO conditional permanent residence | DECEMBER 2017 3 o The marriage was entered into in good faith, but the marriage has terminated, or the petitioner has died; and/or o The marriage was entered into in good faith, but the conditional resident or her child was subject to abuse; and/or o Termination of conditional residence would cause extreme hardship.

7 This practice advisory will discuss each of these scenarios in turn. III. Filing a Joint I-751 Petition to Lift Conditions on residence Joint I-751 A. Must be filed within 90 days of the date that conditional residence ends. If the couple is still married and cooperating with each other, they must file the I-751 within the 90 days before the expiration of conditional Whereas the citizen or LPR spouse was the petitioner when the foreign national was first applying to immigrate, via adjustment of status or consular processing, at the I-751 stage the conditional resident is the petitioner because they are petitioning to lift the conditions on their residency. Filed means the petition is actually received by USCIS by the expiration date, not simply postmarked by the deadline. Otherwise, conditional residence will end and the former conditional resident will become deportable under INA 237(a)(1)(D).

8 5 conditional residence status is automatically extended following a timely I-751 filing, until there is a decision on the The conditional resident with a pending I-751 is entitled to an I-551 stamp in her passport, or an I-94 if no passport, indicating that her conditional resident status has been extended for one year (and can be further extended if adjudication takes longer than one year).7 Although USCIS will try to notify the person at the start of the 90-day filing period, the fact that USCIS does not do this or that the notice does not reach the person is not a defense against losing lawful status if the person fails to file the For this reason, it is critical that the conditional resident and/or his or her legal representative track this date rather than rely on a reminder from USCIS. Also, USCIS is not required to send the person notice prior to terminating conditional residence if the basis for the termination is a failure to file a timely I-751 1.

9 What if the I-751 is not filed within 90 days? USCIS may excuse a late filing if the applicant requests to be excused and submits a written explanation showing that failure to file on time was through no fault of his own. The standard for excusing a late filing is that the delay was due to extraordinary circumstances beyond the applicant s control and that the length of the delay was reasonable. introduction TO conditional permanent residence 4 introduction TO conditional permanent residence | DECEMBER 2017 According to USCIS guidance,10 some examples of what constitutes extraordinary circumstances may include: Hospitalization Long term illness Death of a family member Legal or financial problem Caring for someone Bereavement Serious family emergency Work commitment Family member on active duty with the military If USCIS is unable to make a determination on whether the failure to timely file was due to good cause, it may issue a request for further evidence (RFE).

10 Furthermore, if the issue is still inconclusive after the applicant responds to the RFE, the USCIS service center where the petition was filed may forward the file to the local USCIS office for an interview. Filing the joint I-751 too early can also be a problem, because USCIS may reject it and the applicant might not find out about the rejection until her conditional residence has expired. If that should happen, the applicant will have to file the I-751 late and explain the circumstances. 2. What status does the person have if joint petition filed late? If USCIS accepts the reason for the late filing, it will accept the late-filed I-751 and extend conditional residence until the I-751 is adjudicated. However, if it does not accept the late I-751, conditional residence will terminate, and the person will be placed in removal proceedings.