How to eliminate the conditions to obtain permanent residence in the US by marriage?

How to eliminate the conditions to obtain permanent residence in the US by marriage?

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It is well known that marriage to a US citizen is among the different ways that exist to obtain a Green Card. However, the immigration authorities are very demanding in the criteria they apply to grant permanent residence under these conditions. In fact, if the marriage is very recent, they give what is known as a conditional permanent residence.

Fortunately, obtaining it represents only one step toward naturalization for a foreigner married to a citizen. If the couple proves the marriage is real and was not used to evade immigration procedures, the applicant can obtain permanent residence for ten years. To do this, you must request the removal of conditions, and here we will explain all the details.

What is condition removal?

As previously indicated, a couple made up of a foreigner and a US citizen or Green Card holder can aspire to live together in the United States legally and permanently. However, the duration of the marriage at the time of the application will make a difference in the procedures to be followed.

If the couple had less than two years of legal marriage at the time of their Green Card approval, it would be granted on a “conditional” basis. This means that it will be valid for a maximum of 2 years, after which they can request the removal of said limitation through a form. Once this is done, the applicant can obtain a 10-year Green Card to become a permanent resident within the country.

As always, the agency in charge of these issues is the United States Citizenship and Immigration Services (USCIS). This and other forms related to immigration issues are available on its website.

How to request the removal of conditions to obtain permanent residence?

When one of the spouses has conditional permanent residence and aspires to stay in the US, she must request the removal of conditions. For this, there is Form I-751, the “Request to Eliminate Conditions,” which they must present as a couple to obtain the Green Card.

However, before making such a request, it is essential to consider several points to avoid rejection.

There are only 90 days to request the removal of conditions

Form I-751 has a filing limit. As we indicated, the validity of the conditional permanent residence is two years. Ninety days before they meet is the period in which the couple must submit the request for the removal of conditions to USCIS.

The agency will likely return the form if you submit it earlier than 90 days before the due date. If you submit it after the said period, the application will be rejected unless you can provide a convincing argument to validate the delay.

Form I-751 is filed together

Although the approval of the application will give more legal and extensive status to the foreign spouse, both parties to the marriage must complete the form and sign it. In this way, USCIS can have more proof that the union is current and valid.

Evidence of the authenticity of the marriage

To obtain conditional permanent residence for two years, the couple presents evidence that their union is real and is not an attempt to evade US immigration laws. Two years later, this procedure must be repeated when requesting the removal of conditions.

At that time, USCIS awaits new photographs of your experience as a married couple from the time your conditional residency was approved. Presenting joint financial information, such as those related to services, property purchases, or rentals, would also transmit credibility. And, if children are born in that period, the process is further facilitated.

Interview

In the past, it was common for spouses to attend an interview with a USCIS officer during the removal of conditions application process. But since April 7, 2022, the agency may dispense with this procedure if the evidence presented is sufficient to verify the legitimacy of the marriage.

What happens if the conditions are not removed?

Compliance with the deadlines established by law is essential for the success of the elimination of the conditions. If Form I-751 is not filed or has errors and the 90-day period expires before completing two years of conditional residence, there are consequences.

The main one is that conditional permanent resident status will be automatically canceled, leaving the applicant in a condition known as “out of status” at the end of the two years.

After that, USCIS will send a notice stating that removing the conditions was not requested and probably warrants a hearing. The advantage of this is that in the said process, the affected person will be able to present a justification for the lack of the request or the delay in it.

It is worth noting that if action is not taken immediately, this could have other legal consequences due to the accumulation of illegal presence within the US. Beyond removal, this could imply restrictions of up to ten years on entry into the country, depending on the moves you have made out of status.

What to do if the request to remove conditions is not made on time?

As we indicated in the previous section, there are cases in which the couple fails to apply for the removal of conditions within 90 days before the conditional permanent residence expires. The authorities in charge of immigration issues are aware that unforeseen events may delay the delivery of the form, so there are also options to appeal.

If Form I-751 is filed after 90 days, the couple must attach an explanation for the delay. From that moment, the agency will be in charge of confirming and judging if it is valid to continue with the removal.

Exceptional cases

For many applicants, the time to issue Form I-751 may be short, and the consequences of not submitting it on time may be severe. Indeed, deportation is not a pleasant scenario after investing time and starting projects in the US.

The good thing is that there are exceptions where USCIS can forgive the delay in requesting the removal of conditions.

Divorce

Although marriage is a long-term commitment, it is possible that, for various reasons, its parties decide to end it in a short time. Even under this scenario, there is the possibility of requesting the elimination of conditions to obtain the permanent Green Card.

Since Form I-751 is initially filed jointly, you will need to file it alone in the event of a divorce. Attached must be a request to waive the ex-spouse’s requirement to provide such documentation. However, this does not exempt the basic requirement that the marriage existed and that it was entered into in good faith and not solely to obtain legal status in the US.

Attachments may include attempts to save the marriage in the face of conflicts or differences—for example, evidence of couples therapy or marriage counseling. Or have proof that the US citizen (or Green Card holder) filed for divorce. And also, there should be a copy of the final divorce decree.

Separation due to abuse

Similarly, if it were a case of abuse, the applicant must follow these procedures and attach evidence that they were a victim of violence from their partner. Regarding timing, the application can be submitted any time before the deportation for lack of status begins.

Death of US spouse

One of the most flexible scenarios is the death of a spouse who is already a US citizen. In this case, the permanent resident applicant must present Form I-751, attaching to it a copy of the death certificate of their partner; along with this, there should also be evidence that they actually lived in marriage.

Regarding time limits, USCIS is more flexible regarding the base criterion of 90 days before the expiration of the two-year residency. The agency may receive Form I-751 at any time between the death of the spouse and the expiration of the conditional Green Card.

Extreme difficulties

There is also the possibility of alleging that by not removing the conditions of permanent residence, returning to the country of origin would imply a high risk for the foreigner. In this case, this person would need to demonstrate to USCIS that they would face extreme hardship, among them the occurrence of a civil war in said country or some similar conflict.

In any of the cases, the analysis is made in the interval of time elapsed since the conditional Green Card was approved. Indeed, this would be a highly complex scenario for the applicant and USCIS since there would be so much more to verify.

Could USCIS refuse to remove conditions?

With what has been said so far, the essential thing in the request to remove conditions is to prove the authenticity of the marriage. Therefore, we summarize the reasons that are usually behind the rejection of Form I-751 in the late filing, not providing sufficient evidence that the spouses have a life together or that the evidence issued is fraudulent.

For this and any other type of situation related to immigration issues in the US, it is good to have the appropriate advice. Kannan Law is a law firm where we practice immigration law and can analyze your case, explain the steps to follow, and offer support to guarantee success. Click here and contact us for more details.