If permanent resident status was obtained through marriage, the status is conditional unless the marriage occurred more than two years at the time the permanent resident status was granted.
To remove the condition, the conditional resident spouse, must file with his/her spouse a joint petition (Form I-751) within 90 days of the second anniversary of the conditional residence.
The petition should be accompanied by documents showing a legitimate marriage. These documents include joint tax returns, joint bank accounts, lease showing both husband and wife as tenants, birth certificates of children, joint ownership of car, real estate and other properties and other documents showing that they live together.
If the USCIS Service Center where the petition is submitted is satisfied that the marriage was in good faith, the petition will be approved without an interview.
If there is an indication that the marriage was contracted to evade immigration law, the Service Center will forward the case to the Office of Fraud Detection and National Security. If fraud is found, the conditional resident will be issued a notice of intent to deny and after examination of his/her response, the director may deny the petition.
A dependent child who was granted conditional status on the same day or within 90 days thereafter of his/her parent, will be included in the petition. If the childís status was granted after 90 days, the child must file a separate petition.
If a joint petition cannot be filed, the conditional resident must file a waiver of the requirement of joint signature.
A waiver may be obtained if the other spouse is deceased or it can be proved that extreme hardship during the two-year period will be suffered by the conditional resident.
Waiver may also be granted if the marriage was terminated by divorce or annulment prior to the filing of the joint petition and the conditional resident proves that the marriage was legitimate.
If the parties are separated or undergoing divorce proceedings at the time that the I-751 is required to be filed, both husband and wife may still file a joint petition, if both sign. If the petitioner is not willing to sign the joint petition, the conditional resident spouse is not eligible to file a waiver until the divorce is final, unless he/she is battered or subjected to extreme cruelty by the petitioner.
The conditional residence is terminated if the conditional resident spouse does not file the petition within the 90-day period of the second anniversary.
In one of our cases, the conditional resident husband failed to file the Form I-751 for five years after the required period to file because of marital troubles and separation from his wife.
The conditional resident received a notice from the USCIS terminating his conditional residence. He was threatened with deportation. Fortunately, he eventually got back his permanent resident status through our assistance.
Editorís Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com