I-751 to Remove 2-year Conditional Resident Status
When a spouse immigrates through a marriage that has existed less than two years at the time of admission/adjustment of status, he or she receives conditional resident status instead of permanent resident status. A conditional resident will receive a two-year green card instead of the typical ten-year green card. A conditional resident must file a petition using Form I-751 to convert his or her status to permanent residence. The purpose of this requirement is to ensure that the marriage was not solely for immigration purposes. These requirements also apply to stepchildren of a marriage that existed for less than two years at the time of the step-child's immigration.
Joint I-751 Petitions
If the conditional resident spouse remains married to the U.S. citizen or permanent resident petitioner, the spouse and stepchildren may file a joint I-751 petition and must do so in the ninety day period of time before the expiration of the conditional residence. The petition should include evidence of continued cohabitation, co-mingling of assets and liabilities, and other documentation of the relationship. USCIS may or may not interview the couple. Failure to file the petition before the expiration of the conditional residence or failure to attend the interview results in loss of status and removal (deportation) proceedings. However, USCIS may forgive a failure to timely file or to attend the interview if the conditional resident establishes good cause.
Waiver of the Joint Filing Requirement
In some cases, it is not possible for the conditional resident to file a joint petition with his or her spouse. For example, the petitioning spouse may have died, the couple may have divorced, or the petitioner may be abusive. In these situations, the conditional resident may file an I-751 along with a request to waive the joint petition requirement. The conditional resident still must satisfy USCIS that the marriage was genuine, but the participation of the petitioning spouse is not necessary. USCIS usually conducts interviews where the conditional resident seeks a waiver based on divorce or abuse, although USCIS has approved some of our cases without an interview where the documentation was particularly strong.
USCIS also may waive the joint petition requirement in cases where the conditional resident establishes that removal would result in extreme hardship. The hardship must have arisen after admission as a permanent resident, so poor conditions in the conditional resident's home country usually are not enough (unless those conditions changed for the worse after the person's immigration). For this waiver, the law does not require proof that the marriage was genuine. USCIS is more likely to exercise its discretion favorably, however, if the applicant establishes the marriage was bona fide.
Note, where a conditional resident seeks a waiver of the joint filing requirement, he or she may file the I-751 at any point before the issuance of an order of removal. In other words, the conditional resident may file an I-751 with a waiver based on divorce as soon as the divorce is final, rather than waiting until the 90 day period of time before the expiration of status. He or she also may file after the expiration of the two year period, although that would result in temporary loss of status and potential removal proceedings.