When you apply for a green card based upon marriage to a U.S. citizen or lawful permanent resident (LPR), you will be granted “conditional residence” status if your marriage is less than two years old on the day that you are lawfully admitted to the United States. In order to remain in the United States indefinitely, or pursue U.S. citizenship, you must successfully apply to have the conditions on your green card removed.

These conditions exist due to concerns that some individuals may get married solely in order to obtain a green card – an act which the federal government considers an attempt to “evade” U.S. immigration laws. As a result, in order to have the conditions on your green card removed, you must be able to prove that you got married in good faith and with the intent to remain in your marriage long-term.

The process for removing conditions on your green card starts with filing Form I-751, Petition to Remove Conditions on Residence, with U.S. Citizenship and Immigration Services (USCIS). Here is an overview of the process, along with some important tips and considerations to keep in mind:

1. What is the Timeline to File Form I-751 with USCIS?

To remove the conditions on your green card, you must apply “during the 90 days before your second anniversary as a conditional resident.” If you are not sure when you attained conditional residence status, the second anniversary should also be the expiration date printed on your green card. A conditional green card cannot be renewed. So, if you wait too long to file your application for removal of conditions, you could lose your ability to remain in the United States.

Form I-751 requires a lot of information about the applicant and his or her spouse, and both spouses must sign the application (except as discussed below). In order to be eligible for removal of conditions, you must also be able to demonstrate one of the following:

• You are still married to the same U.S. citizen or lawful permanent resident to whom you were married when you became a conditional resident;
• You are a widow or widower and you entered into your marriage in good faith;
• You entered into your marriage in good faith, but your marriage ended through divorce or annulment; or,
• You entered into your marriage in good faith, but you or your child experienced domestic violence or were subjected to extreme hardship by your spouse.

If you are applying to have your green card conditions removed after a divorce or annulment, the death of your spouse, or domestic violence or extreme hardship, you can seek to have the joint filing requirement for your Form I-751 waived. You also are not limited to filing within the 90-day window described above. However, you must be able to show that you would experience extreme hardship if you were removed (deported) from the United States.

2. What Happens After You File Form I-751 for Removal of Conditions?

Within two to three weeks after you complete and file your Form I-751, you should receive a notice that your conditional residence status has been extended for 12 months. But, even for joint applications, the processing time in some states is currently over 12 months. Applications involving waiver requests typically take even longer.

If it gets close to 12 months since the filing of your application (i.e. if it has been 10 or 11 months), you will need to schedule an InfoPass appointment in order to receive an extension of your conditional status. It can take two weeks or longer to receive an InfoPass appointment, so you will want to make sure you leave plenty of time to avoid becoming subject to removal. At the appointment, you should receive an I-551 stamp on your passport, and this will serve as evidence of your right to remain in the United States while your Form I-751 application is pending.

Once you file your Form I-751 and receive a receipt number, you can check the status of your application to remove conditions online through USCIS.

After receiving your receipt number, your next step is to wait to receive notice of an appointment for biometrics. This typically comes five to seven weeks after your initial filing. At this appointment, you will have your photograph taken, and you will be required to provide fingerprints and your signature for the government’s records.

If no additional information about your marriage is required, then you will receive an interview appointment notice; and, following the interview, you will receive your 10-year green card. However, if USCIS has questions about the validity of your marriage (i.e., whether you entered into your marriage in good faith), then you will receive a request for evidence (RFE) which you will need to address before completing the remainder of the process.

3. What if My Application for Removal of Conditions is Denied?

If USCIS denies your application for removal of conditions, then the government will begin the removal (deportation) process immediately. However, you are entitled to be informed of the reason for the denial, and you have the right to challenge the denial during your removal proceedings. As stated on USCIS’s website: “During this review, [the government] must prove that the facts on your application were untruthful and/or that your application was properly denied.” If the immigration judge agrees with the basis for denial, you will have 30 days to request a review by the Board of Immigration Appeals. If you do not request a review, or if the Board of Immigration Appeals upholds the judge’s decision, then you will be subject to removal.

Due to the severe implications of unsuccessfully filing Form I-751 for removal of conditions on your green card, it is strongly in your best interests to hire an experienced attorney to help you. From proving that you got married in good faith to completing all of the other steps involved in the application process, it is important to carefully approach every step along the way.

*The content and materials available via Ask Ellis are for informational purposes only and do not constitute legal advice.