Foreign nationals who have been married to their U.S. Citizen spouse for less than 2 years will be granted conditional residence, instead of permanent residence, if their request for residency based on marriage to their spouse is approved. This is a way for U.S. Citizenship and Immigration Services (USCIS) to again determine that the marriage is bona fide and not to circumvent U.S. immigration laws. It is therefore very important that the couple gather and preserve documents demonstrating their marriage even after conditional residence is approved.
During the ninety-day period prior to the two-year anniversary of the grant of conditional residence, the couple will jointly file form I-751, Petition to Remove the Conditions of Residence, with the appropriate fee and supporting evidence. Unfortunately, I-751 petitions are currently taking approximately two to four years to process and the conditional resident will likely be waiting several years until they are scheduled to appear for an interview regarding the petition. For this reason, and because it is required of all U.S. residents, the resident must keep USCIS informed of any changes in their address.
Although the I-751 is usually filed by both spouses, there are certain circumstances where the petition may be filed by the conditional resident alone. If the couple entered the marriage in good faith but (1) the U.S. citizen spouse has died, (2) the couple has divorced, or (3) the conditional resident spouse has been a victim of domestic violence, the I-751 may be filed by the conditional resident alone by requesting a waiver of the joint filing requirement. A waiver of the joint filing requirement is also available where the resident can prove that termination of their residence would result in extreme hardship.
Denial of an I-751 petition warrants automatic referral to an Immigration Judge for deportation proceedings. For this reason, it is essential to have an experienced immigration attorney present the best I-751 petition to USCIS as possible, so that they hopefully approve your petition and you do not endure the stress and expense of removal proceedings.
If the petition is approved, the conditional resident spouse will be granted ten-year permanent residence (green card), which should be renewed every ten years. The resident may apply for U.S. Citizenship through their spouse three years after they were granted conditional residence. Because I-751 applications are taking so long to process, an immigration attorney may recommend that you file your request for U.S. Citizenship before you receive approval of your I-751, but this must be determined based on the individual factors of your case.
Karen Winston is an experienced immigration and deportation defense attorney in Jacksonville, Florida who represents clients from all over the world. Contact Us Today.