Form I-751: Petition to Remove the Conditions on Residence
Wendy A. Jerkins
A. General Information
Although conditions may need to be removed on certain employment-based petitions, this article provides a general overview of the process of removing the conditions on residence for family-based petitions. If an individual immigrates to the United States based upon a marriage that is less than two (2) years old at the time of his or her admission, the individual will be a conditional permanent resident. The conditional permanent resident will be issued a Form I-551 Permanent Resident Card (“green card”) in the same manner as any other lawful permanent resident. The card, however, will be marked to reflect that the status is conditional and expires two (2) years after the date of the individual’s admission to the United States.1
I recommend two books: Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool, by Ira J. Kurzban, American Immigration Law Foundation, and Immigration Practice, by Robert Divine, Juris Publishing, Inc. With conditional resident status, I would suggest one additional source: Immigration Law and the Family, by Sarah Ignatius and Elisabeth S. Stickney, The National Immigration Project of the National Lawyers Guild (2002).
A conditional permanent resident is entitled to the same rights, privileges, responsibilities and duties applicable to all other lawful permanent residents.2 A conditional resident, however, is admitted to the United States conditionally for two (2) years.3 “At the time of admission, the alien shall be notified that the alien and his or her petitioning spouse must file a Form I-751, Petition to Remove the Conditions on Residence, within the 90-day period immediately preceding the second anniversary of the alien’s admission for permanent residence.”4
The conditional residency provision was designed to prevent marriage fraud.5 Preparation for filing a petition to remove conditions on residence begins at the onset of the marital relationship. Thus, the couple must maintain adequate records to prove the validity of their marital relationship to an immigration officer.
When an attorney represents an individual who is seeking to remove the conditions on residence, the USCIS requires the following forms: Form I-751 (Petition to Remove the Conditions on Residence) and Form G-28 (Notice of Entry of Appearance as Attorney or Representative).
Jointly Removing the Conditions on Residency
A. How to Jointly Remove the Conditions on Residence
Kim is a U.S. Citizen. She met and married her husband, Carlos, in Argentina while both were students.
Kim files the relative petition in Argentina, and it is approved. Within a few months, Carlos is able to travel to the United States with lawful status. Carlos and Kim have been married for less than one year at the time that Carlos is admitted. Carlos enters the United States as a conditional resident.
Kim and Carlos now live in Atlanta, Georgia. What does Carlos need to do to remove the conditions on his residency?
Because this couple has been married for less than two (2) years at the time of receiving the immigrant status, Carlos will be given conditional residence status.6 At the time that Carlos acquires conditional permanent residence, the immigration officer is required to notify Kim and Carlos of the following:
the conditional basis of the status,
the requirement that he apply for removal of the conditions within the ninety (90) days immediately preceding the second anniversary of his having been granted such status, and
that failure to apply for the removal of the conditions will result in the automatic termination of his lawful status in the United States.7
We will assume that Carlos and Kim have a qualifying marital relationship.8 Because the parties have remained in a qualifying marital relationship, the couple can jointly apply to remove the conditions.9
To jointly remove the conditions, Kim and Carlos will file the following:
Form G-28 (if represented by an attorney)
A check or money order in the amount set forth by the USCIS for the filing fee and the biometrics fee
A copy of the conditional resident’s lawful permanent resident card (Form I-551)
Documentation showing joint ownership of property;
Lease showing joint tenancy of a common residence;
Documentation showing commingling of financial resources;
Birth certificates of children born to the marriage;
Affidavits of third parties having knowledge of the bona fides of the marital relationship, or
Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States.10
Kim and Carlos must sign and file Form I-751 within ninety (90) days of the second anniversary of the grant of conditional residence.11 If filed after the ninety (90) day window, the application may be considered filed only if the couple demonstrates “good cause and extenuating circumstances for failure to file the petition during the” ninety (90) day period.12
If the couple fails to file within the ninety (90) day window and Carlos is placed in removal proceedings, the U.S. Citizenship and Immigration Services (hereinafter, “UCIS”) “may stay such removal proceedings against . . . [Carlos] pending the filing of the petition.”13
Generally, the application “shall be filed with the director of the regional service center having jurisdiction over the alien’s place of residence.”14 In the past, for applicants (like Kim and Carlos) who resided in Atlanta and, therefore, fell within the jurisdiction of the Vermont Service Center, the petitions would have been mailed to the following address:
U.S. Citizenship and Immigration Service
U.S. Department of Homeland Security
Vermont Service Center
75 Lower Welden Street
P.O. Box 200
St. Albans, Vermont 05479-0001
In light of the rapid and frequent changes at USCIS, it is important to regularly verify the filing fees and the mailing addresses prior to filing any petition or application. As with most issues related to immigration law, the filing fees and the addresses are subject to change without much advance notice. The check or money order for the filing fees and the biometrics fees should be made payable to the U.S. Citizenship and Immigration Services.15
The processing times for the adjudication of the applications vary. Patience and diligent inquiry are quite essential.
With the joint filing, Carlos and Kim may be required to appear for a personal interview.16 The USCIS, however, may waive the interview.17
When the notice of the interview is received and the interview date scheduled, it is a good idea to schedule a brief meeting with your clients. During this meeting with your clients, you will verify that your clients have all of the needed documents and that the documents are organized. Your goal as the attorney is to make it as easy as possible for the immigration officer to review and to approve the petition. Make sure that the originals are available for presentation to the immigration officer. Get certified copies of official documents. Make a copy of any document that will be presented to the officer. During this meeting with your clients, you will need to make sure that your client—particularly your conditional resident client—has informed you of any and all criminal convictions and/or arrests. You may be able to remedy the problem involving any criminal charges before the interview.
At the interview, hopefully, the immigration officer will approve the petition. The immigration officer, however, may request more evidence. If evidence is provided to the satisfaction of the officer, the conditions will be removed. If the additional evidence is not sufficient, the officer may deny the application. The applicant then will seek review in removal proceedings.
Please note that the interview is important. Not only could a conditional resident’s status be adversely terminated if the conditional resident and the spouse fail to petition the BCIS within ninety (90) day period before the second anniversary of conditional residence, the conditional resident’s status can be adversely terminated if the conditional resident and the spouse fail to jointly appear at the interview (unless good cause is shown).18
Other grounds for the adverse termination of a conditional resident’s status are as follows: If it is determined that the marital relationship “was entered into for the purpose of procuring an alien’s admission as an immigrant;” “has been judicially annulled or terminated, other than through the death of a spouse;” or a “fee or other consideration was given (other than a fee or other consideration for assistance in preparation of a lawful petition),” the Attorney General shall notify the parties and terminate the permanent resident status of the alien.19 The alien, however, can seek review of the decision before Immigration Court.20
Even after the conditions have been removed, if the USCIS “determines that an alien spouse obtained permanent resident status through a marriage which was entered into for the purpose of evading the immigration laws,” the USCIS may institute rescission or removal proceedings.21
Same factual scenario as above, however, Carlos is the single parent of a five (5) year old daughter at the time that he meets and marries Kim. Carlos’ daughter, Maria, travels to the United States at the same time as her father and her new stepmother.
What must be done for the child?
We will assume that Kim filed a relative petition (Form I-130) for Carlos and a relative petition (Form I-130) for Maria. Because of their relationship to Kim, both Carlos and Maria would be deemed immediate relatives. As long as Maria is a minor (under the age of twenty-one) and is admitted to the United States “on the same date or within 90 days” of her father, Maria will enter the United States in the same conditional status as Carlos.
According to 8 CFR § 216.4(a)(2) (Dependent children.)
“Dependent children of a conditional permanent resident who acquired conditional permanent resident status concurrently with the parent may be included in the joint petition filed by the parent and the parent’s petitioning spouse. A child shall be deemed to have acquired conditional residence status concurrently with the parent if the child’s residence was acquired on the same date or within 90 days thereafter. Children who cannot be included in a joint petition filed by the parent and parent’s petitioning spouse due to the child’s not having acquired conditional resident status concurrently with the parent, the death of the parent, or other reasons may file a separate Petition to Remove the Conditions on Residence (Form I-751).”22
The conditions on Maria’s status will be removed at the same time and in the same manner as her father. Maria may be included in her father’s petition.
Same factual scenario as Scenario 2, however, Carlos, Kim, and Maria are temporarily visiting Argentina at the time of the second anniversary.
The petition must still be filed. The petition to remove the conditions must be filed within the ninety (90) day period “regardless of the amount of physical presence which the alien has accumulated in the United States.”23 “A petition may be filed regardless of whether the alien is physically present in the United States. However, if the alien is outside of the United States at the time of filing, he or she must return to the United States, with his or her spouse and dependent children, to comply with the interview requirements . . . ”24
It must be noted that a conditional resident, like a lawful permanent resident, must be careful to maintain continuous residence in the United States. A conditional resident does not want to risk abandoning his or her residence in the United States.
III. Waivers - Removing the Conditions on Residency Without the Petitioning Spouse
If a conditional resident is unable to file jointly with his or her spouse, he or she may be able to apply for any of the following waivers: (a) extreme hardship, (b) a terminated good faith marriage, and/or (c) battery or extreme cruelty. A conditional resident can apply for more than one waiver. A conditional resident should apply for each and every waiver that reflects their individual situation and that fits their specific circumstance. If the conditional resident fails to apply for a specific waiver, the Immigration Judge is limited to review only the waiver that was requested before the USCIS.25 The three grounds for a waiver are separate and independent.26
As stated above, a conditional resident can apply for a waiver of the joint filing requirements.27 Use Form I-751 to apply for the waiver, and the filing fee is $505. Always check to verify the current USCIS filing fee. The application shall be filed with the regional service center director having jurisdiction over the alien’s place of residence.28 As with the joint filing requirements, enclose a copy of the conditional lawful permanent residency card (Form I-551) with the copies of supporting documentation. With most of the waivers, it will be helpful to attach an affidavit from the conditional resident. As a part of the adjudication of the application, an interview may be scheduled in which the conditional resident may be required to appear.29
A decision regarding the application for a waiver shall be in writing.30 If the decision is adverse, the alien may seek review of the decision in removal proceedings before the Immigration Judge.31
Same factual scenario as Scenario 1, except, Kim refuses to join Carlos in filing to remove the conditions.
Carlos may file for a waiver. “If the joint petition cannot be filed due to the termination of the marriage through annulment, divorce, or the death of the petitioning spouse, or if the petitioning spouse refuses to join in the filing of the petition, the conditional permanent resident may apply for a waiver of the requirement to file the joint petition . . . ”32 Upon the proper filing of the waiver, “the alien’s conditional permanent resident status shall be extended automatically, if necessary, until such time as the director has adjudicated the petition.”33
The statute is not explicit regarding the procedures for a conditional resident whose spouse has died.34 “If the petitioning spouse died within the first two years of the conditional resident’s admission to the United States, the conditional resident spouse must file the petition for the waiver of the joint filing requirement.”35 Generally, the conditional resident should provide the deceased spouse’s death certificate and documentation to demonstrate that the qualifying marriage was entered into in good faith.36
Same facts as in Scenario 4, however, the situation in Carlos’ native land has deteriorated. Argentina now faces a severe economic crisis, and medical supplies and services are restricted. Recently, Carlos has been diagnosed with a debilitating illness.
(a) Extreme Hardship
If Carlos can demonstrate that removal from the United States would result in extreme hardship, he is eligible to apply for the extreme hardship waiver.37 Importantly, it appears that Carlos’ “extreme hardship” arose after he entered the United States.
In an application based upon a claim of extreme hardship,
“the director shall take into account only those factors that arose subsequent to the alien’s entry as a conditional permanent resident. The director shall bear in mind that any removal from the United States is likely to result in a certain degree of hardship, and that only in those cases where the hardship is extreme should the application for a waiver be granted. The burden of establishing that extreme hardship exists rests solely with the applicant.”38
“Extreme hardship” is determined on a case-by-case basis.39 Factors to be considered in determining “extreme hardship” include—but are not limited to—the following: (1) the age of the individual at the time of entry into the United States, (2) the individual’s ability to speak the native language and to adjust to life in the country of return, (3) the health condition of the individual and the availability of any required medical treatment in the country to which the individual will be returned, (4) the individual’s ability to obtain employment in the country to which he faces return, (5) the length of residence in the United States, (6) the existence of other family members who are or will be legally in the United States, (7) the financial and the psychological impact of the individual’s departure, (8) the current political and economic conditions in the country to which the individual faces return, (9) contributions to and ties to a community in the United States, including the degree of integration into the society, and (10) the individual’s immigration history.40
(B) A terminated Good Faith marriage
If Carlos divorces his wife and he is able to demonstrate that the marriage was entered into in good faith, Carlos may apply for a waiver. The conditional resident can apply for a waiver if he can demonstrate that “the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse)” and the conditional resident was not at fault in failing to file a timely petition.41
The USCIS will review the following evidence to determine if the qualifying marriage was entered in good faith:
(i) Documentation relating to the degree to which the financial assets and liabilities of the parties were combined;
(ii) Documentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence;
(iii) Birth certificates of children born to the marriage; and
(iv) Other evidence deemed pertinent . . .42
The above list is not exhaustive or all-inclusive.
To qualify for the good faith waiver, the USCIS clarified that the marriage must be terminated. “[T]hus, the mere commencement of divorce proceedings is not sufficient.”43
Battery or Extreme Cruelty
If Carlos was the victim of abuse or extreme cruelty in the marital relationship, he may be eligible to apply for a waiver of the joint filing requirement. The conditional resident must demonstrate that the “qualifying marriage was entered into in good faith by the conditional resident but during the marriage the alien spouse or child was battered by or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent.”44 “The conditional resident parent of a battered or abused child may apply for the waiver regardless of the child’s citizenship or immigration status.”45 The conditional resident who is the subject of battery or extreme abuse “may apply for the waiver regardless of his or her present marital status.”46 Furthermore, this conditional resident may apply for the waiver even if residing with the citizen or permanent resident spouse, divorced, or separated.47
The information provided by the abused conditional resident spouse or child is confidential.48 In reviewing this waiver, the USCIS must consider any credible evidence.49
Examples of “battery” or “extreme cruelty” include—but are not limited to—“being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor) or forced prostitution shall be considered acts of violence.”50 “Evidence of physical abuse may include, but is not limited to, expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel.”51 A person recognized in the field to be an expert can provide an evaluation.52 For example, licensed clinical social workers, psychologists, and psychiatrists are professionals able to provide the evaluation.53
This article does not cover every possible factual or legal scenario that may arise in an attorney’s immigration practice. The immigration attorney must be flexible in representing their clients. It is important, however, that clients are reminded of the civil and criminal penalties that may attach if individuals commit marriage fraud.
This article is neither intended to create—nor does it create—an attorney/client relationship. Each case is different and requires a case specific analysis.