The Marriage Fraud Amendments passed by Congress in 1986 established the Conditional Residence classification. The main goal of these amendments is to prevent fraud in marriage based Adjustment of Status applications. The amendments mandate that the Beneficiary in an Adjustment of Status case to apply for removal of conditions on the permanent residence by filing an I-751 application 90 days before the second anniversary of the approval of the initial Adjustment of Status application.
Who and When Do You have to File Your Petition?
A Beneficiary of any marriage based I-130 petition, filed by a United States citizen or a lawful permanent residence, must file the I-751 application if he or she were granted Conditional Permanent Residence initially. A Beneficiary would be granted this status if his or her marriage to the United States citizen or permanent resident is less than 2 years old. Beneficiaries who have been married to the Petitioner for more than 2 years receive permanent residence without any conditions.
The Beneficiary must file the petition 90 days before the expiration of Conditional Residence.
Do I have to File Jointly with My Spouse?
If you are still married to the Petitioner spouse at the time of filing, you should apply jointly. A joint petition would not be possible if you and your spouse are separated or divorced, it is advisable to apply for one of the waivers discussed below.
My Spouse and I are Divorced, What Should I do Now?
If you are no longer living with your spouse, or you are now divorced, you may apply for one of the available waivers under INA §216(c)(4). These waivers include:
- Extreme Hardship Waiver: this waiver is available for Applicants whose removal would lead to extreme hardship to a qualifying relative.
- Good Faith Marriage: this waiver is available for an Applicant who entered the marriage in good faith, and the marriage was terminated other than the death of the Petitioner spouse.
- Battered Spouse Waiver: this waiver is available if the Conditional Resident was abused or battered by the Petitioner during the period of conditional residence.
A Beneficiary does not have to wait to apply for one of these waivers until 90 days before the conditions expiration and may file at any time.
What Evidence Should I File?
There are several decisions from the Board of Immigration Appeals dealing with the sufficiency of the evidence in these cases. Some of the evidence that you should consider including in your petition include:
- Birth certificates for any children
- Health and car insurance
- Joint mortgages and other joint loans
- Utility and phone bills
This is not an exhaustive list and you should consult an immigration attorney before filing your petition.
My Petition was Denied, Now What?
Under the Immigration and Naturalization Act, a denial of the I-751 petition by the Service leads to the initiation of removal proceedings against the Applicant. The Applicant may renew the application before the Immigration Judge. The Applicant may also renew his or her waiver applications.
It is important to highlight the fact that the Applicant remains a Lawful Permanent Residence until the immigration judge enters a final decision.
Please hire an attorney before filing an I-751 application, since they are very complicated and have great consequences if the Service denies them. Call us or contact us for a consultation.