Removal of Conditions for Spouse of US Citizen
A Permanent Residence Status is considered conditional if it is being based on a marriage that was less than two years old on the day the permanent residence is given. Conditional resident status is given on the day you are lawfully admitted to the United States on an immigration visa or adjustment of your status to permanent residence.
Your status becomes conditional because you must be able to prove that you did not get married to evade the immigration laws of the United States. You must then file a Form I-751 Petition to Remove Conditions on Residence.
You may apply to remove your conditions on permanent residence if:
- you are still married to the same U.S. citizen or permanent resident after two years;
- you are a child and cannot be included in the application of your parents for some valid reason;
- you are a widow or widower of a marriage that was entered into in good faith; you entered into a marriage in good faith but the marriage was ended through divorce or annulment;
- you entered into a marriage in good faith but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or permanent resident spouse; or
- if the termination of your conditional resident status would cause extreme hardship to you.
The Definition of Marriage
There is no exact definition of marriage in immigration law, as this is a subject matter of the laws of the country or state in which the marriage was entered into. However, federal laws recognize a marriage as valid in the place where it was solemnized.Generally, marriages performed legally abroad are considered legitimate in the United States. Consular officers can authenticate marriage documents from other countries to establish the fact of marriage.
The Definition of a Spouse
Immigration laws define a spouse more by what it is than what it is not. However, immigration laws do not recognize one to be a spouse if the marital relationship was established by a marriage ceremony where the parties were not physically present, such as in a case of proxy marriage unless thereafter consummated.
The USCIS considers the following factors in determining the existence of a spousal relationship for the purpose of immigration petition:
- The marriage must have been valid at the time it was performed;
- The marriage must still be in existence; and
- The marriage must not have been entered into for the purpose of conferring permanent resident status on the alien.
A “sham marriage” is one in which the parties of a marriage entered into the marriage solely for circumventing immigration laws for the purpose of falsely acquiring immigration benefits.
A sham marriage is not valid for immigration purposes as its sole purpose being to enjoy immigration benefits or evade immigration restrictions.
The USCIS will tries to interpret the true intention of the marriage when the immigration officers are reviewing immigration petitionstaking into account the following factors:
- Whether the couple have known each other for a reasonably long time;
- The frequency of meetings of the couple prior to the marriage;
- Whether the couple have lived together in the past or presently live together;
- Whether the couple married only after one party became the subject of an investigation, removal, or deportation proceedings by the USCIS. An immigration petition may not be approved for the alien who was married after the commencement of removal, exclusion, or deportation proceeding until the alien has resided outside the U.S. for at least two years, unless the alien spouse can prove the marriage was a good faith marriage and not solely for immigration purposes.
To prove the marriage was entered into in good faith, the following evidence should be presented:
- Document showing joint ownership of property;
- Joint tenancy of lease;
- Documentation showing commingling of financial resources;
- Birth certificates of children born to the couple;
- Affidavits of a third party proving there is a bona fide marital relationship between the couple; and
- Other documents to prove that the purpose of the marriage is not to evade immigration laws.
Applying for Removal of Conditions
Both YOU AND YOUR SPOUSE must apply together to remove the conditions on your residence by filing Form I-751. You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your green card is also the date of your second anniversary as a conditional resident. Here are the steps in applying:
STEP ONE –You must apply in the 90 days period before your second anniversary as a US resident. Failure to do so may lose residency and may be deported.
STEP TWO – Prepare documents and evidences as early as six months before your actual application for removal of conditional status. Affidavit or another document that needs time to be obtained may also be needed.
STEP THREE – Any kind of documents to prove that you have a genuine marriage, like joint accounts, joint lease on the house, pictures of you together and with family and friends, plane tickets from your trips together, copies from any document that show that you live at the same address, copies of birth certificates of your children (if you have any). Also include a copy of the first green card, a copy of the marriage certificate and copies of your birth certificates (yours and your spouse’s). To avoid an RFE (Request for Evidence) that will delay your case, try to send as much documents as possible.
STEP FOUR – Download the most recent version of I-751 form, Petition to remove Conditions on Residence, from USCIS website and carefully fill out the form. Attach a cover letter that explains what you are sending in the package.
STEP FIVE – Add at least one affidavit for some good friend/ family/ parent who knows you and your spouse. The affidavit should specify how long they have known you that you live together and the last time you were seen together.
STEP SIX – Check the fees on I-751 on the U.S. Citizenship and Immigration Service’s (“USCIS”) website. Fees change quite often, so write the check with the fees in the day that you are sending the application, just to be sure that it’s the most recent fee.
Put all the documents together and organize them in a file, and then send them.
BUT WHAT HAPPENS IF I AM DIVORCED?
WHAT IF MY SPOUSE NO LONGER WANTS TO HELP ME?
CONSIDER—I-751 WAIVER PETITION– A waiver can be obtained if a foreign national: Would suffer hardship if removed from the country; entered the marriage in good faith, but the marriage has terminated; or has been subjected to battery or extreme cruelty.
Note: When waiver has been submitted to USCIS, the immigration agency will either approve the petition or request that the conditional permanent resident attend an appointment at the local USCIS field office.
PAY ATTENTION TO SEE IF YOU ARE EVEN ELIGIBLE FOR THE I-751 WAIVER APPLICATION. YOU ARE ELIGIBLE IF
: (a) You entered into a marriage in good faith, but the marriage was ended through divorce or annulment; (b) You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or permanent resident spouse; or (c) The termination of your conditional resident status would cause extreme hardship to you.
A NOTE ABOUT CHILDREN.
There may be no derivative status for immediate family members of a US citizen but the children of the immigration spouse must remove the condition if they obtained their status in less than two years of the parent/ step parent’s marriage.
If your child has received a conditional resident status within 90 days of when you did, then you may include your child in your application to remove the conditions on permanent residence. Your child must file a separate I-751 application if your child received conditional resident status more than 90 days after you did.
Permanent residents receive a green card, proving that you have the right to live and work in the United States permanently. If you file Form I-751 on time, the time of your conditional resident status will be extended until a decision has been made on your application. You will be sent a notice regarding the same.
You Need an Immigration Lawyer for Your Removal of Conditions for Spouse of US Citizen
Successful adjudication of your immigration petitions and cases through the numerous deadlines, intricate requirements, and complex processes could be extremely difficult if you do not have an immigration lawyer. With immigration laws constantly changing, understanding what is required and when is very difficult to understand; thus, calling for the assistance of experienced immigration lawyer.
At the Gambacorta Law Office, we can help you through the preparation of your petitions and applications, coach you for your USCIS interview, and clear out issues on your greencard, visas, and many others.
We provide exceptional and dedicated representation in various areas of immigration laws. From greencards, visas, to adjustment of status and everything else in between, we are here to help. We thoroughly prepare your immigration case, working with you on the basis of honest and clear communication every step of the way.
Our expertise can work for your advantage, giving you the most efficient and effective immigration assistance as you need it.
Get in touch with us today to know more about how we can help you on your immigration petition, application, and case today!