If a foreign national obtains permanent resident status through marriage, and they have not been married for at least two years at the time they obtained permeant resident status, the permanent residence is conditional for two years. Conditional permanent residents have the same rights to live and work in the United States as other permanent residents.
Within the 90-day period prior to the two-year anniversary of obtaining conditional permanent residence, a conditional permanent resident must file a petition to remove the conditional basis of the permanent residence. Failure to timely file this petition will lead to the permanent residence being terminated and could result in the initiation of removal proceedings. Late filings may be accepted by U.S. Citizenship and Immigration Services (“USCIS”), if the alien is able to establish “good cause and extenuating circumstances” for failure to timely file the petition.
In a typical case, the petition must be jointly filed by the conditional permanent resident and their spouse. In order for the petition to be approved, USCIS must find evidence that the marriage was not entered into for the sole purpose of the alien procuring permanent resident status, but instead was entered into in good faith. Evidence of a good faith marriage may include, but is not limited to:
- Birth certificates for children of the relationship;
- Joint tax returns;
- Evidence of joint bank accounts or credit cards;
- Joint leases or mortgages;
- Joint utility bills;
- Life/health insurance naming the other spouse as a beneficiary/covered person; and
- Affidavits from friends, family members, and neighbors.
- Waiver of Joint Filing Requirement
- If a conditional permanent resident is unable to file a joint petition with their spouse, they may request a
- waiver of the joint filing requirement. Individuals seeking a waiver of the joint filing requirement, may do so at any time prior to being ordered removed from the United States.
There are four types of waivers which will allow a conditional permanent resident to request a waiver of the joint filing requirement.
- Death of Spouse Waiver – The marriage was entered into in good faith, but the conditional permanent resident’s spouse has since died. In order to obtain a conditional green card, the surviving spouse will have to provide a copy of the death certificate along with evidence that the marriage was originally entered into in good faith.
- Divorce Waiver – The marriage was entered into in good faith, but the marriage has since been terminated by annulment or divorce.
- Battered Spouse Waiver – The conditional permanent resident has been battered or subjected to extreme cruelty by their spouse. The battered spouse will have to provide evidence of the abuse such as police, court and medical records.
- Extreme Hardship Waiver – The conditional permanent resident would suffer extreme hardship if the joint filing requirement is not waived and their permanent resident status is terminated and they are subsequently deported.
Removal of Conditions and Children
If a child receives conditional permanent residence along with their parent, they may be included on the parent’s petition, or a separate petition may be filed on the child’s behalf.
For more information, please schedule a consultation.