I-751 PETITION TO REMOVE CONDITION
A conditional permanent resident is required to submit a Petition to Remove Conditions (Form I-751) within the 90- day period of time immediately preceding the second anniversary of the date on which the alien obtained conditional permanent residence. The conditional resident must file the petition jointly with his or her spouse, unless certain conditions exist for a waiver.
A jointly filed Petition to Remove Conditions must meet the requirements of being:
- Filed at the proper USCIS Service Center (with the proper filing fee) within the mandated time period
- Signed by the conditional resident and the alien’s spouse
- Accompanied by supporting documentation confirming the validity of the marriage
The joint petition must be filed with either the Vermont Service Center or the California Service Center,depending on the residence of the conditional resident.
If the joint petition is properly filed, USCIS shall determine whether:
- The marriage was entered into in accordance with the laws of the place where the marriage took place.
- The qualifying marriage has been annulled or terminated (other than through death of the spouse).
- The marriage was entered into for the purpose of procuring permanent resident status for the alien.
Under current immigration law, if on the date an individual is granted permanent residency (a green card) the marriage is less than 2 years old, a temporary Green Card is given. The couple is required to complete Form I-751 together at the end of the following 2 years. Failure to do so results in the automatic loss of the status for conditional resident at the end of the two-year period. Both parties must sign the I-751. They must submit a filing fee and documents establishing that the marriage was entered into in “good faith” and not for the purpose of evading the immigration laws.
Evidence of Good Faith Marriage With Form I-751
- Proof That You Have Children Together
- Evidence of Shared Resources and a Family Home
- This includes joint financial accounts as well as the maintenance of a shared home
- copies of jointly filed tax returns for the past two years
- joint savings and checking account statements
- investment account statements
- credit card and loan statements
- bills of sale for an automobile or another large purchase
- Copy of lease
- mortgage or deed for your family home
- utility bills in both of your names
- Insurance and Estate Documents
- health insurance
- automobile insurance
- home insurance
- policies and life insurance policies that list you or your spouse as the beneficiary in case the other dies
- Proof That You Vacationed Together
- travel documents and
- itineraries for a honeymoon or a family vacation
- family photos
- Proof That You Share a Family Name
- Affidavits, Letters, and Correspondence
The things that USCIS looks closely while adjudicating I-751 petitions are: joint health insurance, leases, children, etc.
I-751 Petition to Remove Condition : Waivers
- The termination of the beneficiary’s status and removal would result in extreme hardship.
- The Beneficiary Entered into the Marriage in good faith, but his/her spouse subsequently died.
- The Beneficiary Entered into the Marriage in good faith, but the marriage was later terminated due to divorce or annulment.
The I-130 Beneficiary may file the I-751 petition at any time after he or she is granted conditional resident status and before he or she is removed.
Separated Parties while I-751 is pending
The Neufeld Memo provides the guidance to adjudication of Petitions and Waivers of Removal of Condition for conditional residents: (See i-751_Filed_ Prior_Termination_3apr09)
If a waiver is filed post separation but prior to final divorce:
- Petitioners will receive an RFE requiring that the divorce be finalized in 87 days.
- If the divorce is finalized before the response to the RFE is due, petitioners may submit the divorce decree in response to the RFE and the case will be processed as a waiver case.
- If petitioners are not divorced in time to respond to the RFE, they will receive a notice revoking CPR status, and an NTA will be issued.
If a joint petition is filed post separation but prior to final divorce:
- Petitioners will receive an RFE asking for a divorce decree, and when it is submitted, petitioners must then request that their case be converted to a waiver case. This will avoid the need to refile the case as a waiver. When this occurs, the case may or may not, depending on the strength of its merits, be referred for interview.
- If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.
The officer will adjudicate the I-751 as a joint petition. Ask the officer at the interview to keep your case in abeyance to give you a chance to file a good faith waiver. Or you can file a new I-751 now, and bring the receipt and the filing to your interview. This strategy might work depending on your jurisdiction.
USCIS has issued a policy memorandum providing guidance to USCIS officers on when to consider waiving the interview requirement for Form I-751, Petition to Remove Conditions on Residence This PM goes into effect on December 10, 2018 and applies to all Form I-751 petitions received on or after December 10.
Generally, USCIS officers must interview a conditional permanent resident who is the principal petitioner on a Form I-751, unless the interview is waived. This guidance explains that officers may consider waiving an interview if they are satisfied that:
- They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into in order to evade U.S. immigration laws;
- For Form I-751 cases received on or after December 10, 2018, USCIS has previously interviewed the principal petitioner;
- There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
- There are no complex facts or issues that require an interview to resolve.
When determining whether to waive an interview, these considerations apply regardless of whether the Form I-751 is filed as a joint petition or as a waiver of the joint filing requirement.
EXPERIENCED IMMIGRATION ATTORNEY WILL HELP YOU PREPARE YOUR I-751 WAIVER
Can I convert my conditional green card to H-1 or F-1 status?
No, you cannot change your status from a green card holder to a non-immigrant status.
I married a U.S. citizen and was granted permanent resident status on a conditional basis. Subsequently we got divorced. I had never filed a petition to remove the condition. Later I married a second U.S. citizen. Can my new wife file a visa petition on my behalf so I can adjust my status in the U.S.?
Yes, she can. The Law INA does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section INA245(a). (Matter of Stockwell,20 I&N Dec. 309 (BIA 1991))
When to file Form I-751 waiver , if marriage ends in Divorce?
You do not have to wait to file the I-751 if the divorce is finalized; the sooner, the better.
I am about to file Form I-751 to remove the conditions. Can I travel outside of the U.S. before I receive my 10 year Green Card?
Although regulations generally require an LPR to travel with a valid Green Card, CBP policy permits a transportation carrier bound for the United States to board an LPR without carrier documentation if:
- They have an expired Green Card that was issued with a 10-year expiration date, or
- They have an expired Green Card with a 2-year expiration date AND a Form I-797, Notice of Action, showing that they have filed a Form I-751 or Form I-829 to remove the conditions on their permanent resident status. The Notice of Action extends the validity of the card for a specified length of time, generally one year.
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