Removing the Condition on Permanent Residency Following a Divorce or Deterioration of a Marriage

A conditional permanent resident is someone who has obtained his or her status through marriage to a United States citizen spouse, when the marriage is less than two years old at the time the status is granted.  A conditional resident is granted such status for a period of two years.  Before the expiration of the two-year period, the conditional resident and his or her United States citizen spouse are required to file a joint petition to remove the condition on the permanent residency of the foreign-born spouse by filing Form I-751, Petition to Remove Conditions on Residence.  There is a 90-day filing period for the filing of a jointly filed Form I-751.  This filing period begins 90 days before the second anniversary of the grant of the conditional permanent residency, and ends on the date of the second anniversary of such grant.  The U.S. Citizenship and Immigration Services (“USCIS”) will review the couple’s timely filed I-751 petition.  If the USCIS is convinced that the couple did not enter into the marriage for the sole purpose of the foreign national spouse’s obtaining the conditional permanent resident status, the USCIS will most likely approve the I-751 petition, either after an interview or without an interview.  If the I-751 petition is approved, the condition on the residency is lifted and the foreign national is afforded permanent residency and issued a new alien registration card valid, which will be valid for 10 years.

This is, of course, the ideal outcome.

But what happens when things do not go as well as expected?

What happens when a marriage ends in a divorce within the two years?

What happens if a marriage falls apart within the two years, but the couple has not yet divorced?

The answers to these important questions are not easy and certainly impact the CR’s eligibility to remain lawfully in the United States.

When a marriage ends in a divorce within two years, the conditional resident may file Form I-751 without the U.S. citizen spouse.  In this scenario, the conditional resident has two options.  The first is for the conditional resident to claim that he or she entered into the marriage in good faith, but that the marriage ended in a divorce (or an annulment).  The second option is for the conditional resident to claim that the termination of his or her status and removal from the United States would result in extreme hardship to him or her.

When a marriage falls apart within the two year period, but the couple has not yet divorced, the conditional permanent resident may file Form I-751 without the U.S. citizen spouse.  In this scenario the conditional resident has at least two options.  The first is for the conditional resident to claim that he or she entered into the marriage in good faith but during the marriage the U.S. citizen spouse either battered him or her or subjected him or her to extreme cruelty.  The second option is for the conditional resident to claim that the termination of his or her status and removal from the United States would result in extreme hardship to him or her.

In our office, we have seen many people who have ignored the requirement of filing the I-751 petition.  A majority of these people simply did not want to deal with filing the I-751 petition once the marriage ended or fell apart.  Others thought that because the marriage was over, they did not have to file the I-751 if it could not be filed jointly.  No matter what the circumstances, if you are a conditional resident, it is a bad idea either to ignore the I-751 filing requirement or assume that the filing of the petition is not required!

Most everyone enters into a marriage hoping that it will last forever.  But circumstances change and sometimes people change.  For those who obtained lawful conditional residency based upon a marriage that has since ended or gone bad, there is still hope to have the condition removed.

Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.
Ruchi Thaker
Posted in adjustment of status, I-751.