Many of our clients are U.S. citizen or permanent resident newlyweds who wish to petition for their alien spouses. Many couples think that once they file and their case is approved, the alien spouse's immigration status is good forever. However, under INA §216, if the couple was married for less than two years at the initiation of this process, then the alien spouse may only be granted conditional permanent resident status in the United States as of the date he or she is admitted or adjusted to this status. Though conditional permanent residents essentially have the same rights and responsibilities as all other permanent residents, the impetus behind imposing conditions to newlywed alien spouses is to ensure that the marriage was entered into in good faith and not for the purpose of deriving an immigration benefit through a false and temporary marriage.
How, then, does the alien spouse transition from a conditional basis to permanent status? Since the conditional permanent resident green card is only valid for two years, the U.S. citizen or permanent resident and his or her alien spouse must jointly file a petition (USCIS Form I-751) to remove these conditions during the 90-day period before the expiration of the green card (i.e., the 90-day period before the second anniversary of the alien spouse's U.S. admittance or adjustment). Timing is key: not only must the couple remember to file this petition almost two years after the alien spouse's arrival/adjustment, but they must do so in the specified time frame. Failure to file Form I-751 can have disastrous consequences, as USCIS will terminate the alien's spouse's status and most likely initiate removal proceedings.
Filing the correct form at the right time and with the correct filing fee is only part of the process in establishing a convincing marriage. The couple must demonstrate the good faith nature of their marriage through solid evidence of their time together over the two years preceding the petition to remove conditions. A couple whose marriage was entered into in good faith but who lack substantial evidence may still have their I-751 petition called into question or outright denied. Of course, even if a marriage was entered in good faith, circumstances may change. What happens if the couple divorces, or if the U.S. citizen/permanent resident dies? What if the alien spouse is battered by his or her husband or wife, or any other form of hardship occurs that prevents the alien spouse from filing jointly with his or her U.S citizen/permanent resident husband or wife? Depending on the exact nature of the circumstances, the alien spouse may potentially file a waiver application that, with the proper evidence, may allow him or her to be granted permanent resident status without the participation of his or her spouse.
If you or your spouse is thinking about the conditional permanent resident process, contact our office in Edison, New Jersey. We can help you prepare the correct forms and advise you on the evidence requirements. Furthermore, we specialize in waiver cases and marriage interviews and have assisted couples in navigating the immigration process for over fourteen years.