Removing Conditions on Residence after Divorce
US Permanent Residency is given to a foreigner when they enter the US on an immigrant visa or when they change their status to permanent resident within the US. Your permanent residence in the United States is conditional if it is obtained through a marriage that took place less than two years from the day you obtained your permanent residency. In other words, if your permanent residency was approved before your second wedding anniversary, your residency is conditional upon the marriage, and you will have to petition to remove the conditions to receive a ten-year green card.
This is because US immigration laws place the burden on the foreign national to prove that the marriage is in good faith. It is an extra step that the law requires to the foreign nationals before issuing a permanent green card.
In this case, the US Citizenship and Immigration Services (USCIS) will issue a conditional green card, which will be valid for up to two years. In order to remove the conditions on residence and obtain a permanent green card, you will have to submit Form I-751 – Petition to Remove the Conditions of Residence. In most cases, this Form must be signed by you and your spouse, who is a US citizen or green cardholder. This is known as joint filling. This Form should be sent to the USCIS within 90 days prior to the expiration date on the conditional (2-year residency card).
However, if the marriage is annulled or if you divorce your spouse before completion of the two-year period and you wish to continue to stay in the US, you will have to submit Form I-751 along with a request for waiver of the joint filing requirement. The waiver will be relevant if any of the following conditions are met:
- Your removal from the US and the termination of your status will subject you to face extreme hardships if returned to your home country;
- Divorce or annulment after a good-faith marriage;
- Battery or abuse by your spouse in a good-faith marriage
Getting a Divorce While You Are Still a Conditional Resident
If you get a divorce before the completion of the two-year time period, you will need to request a waiver of the joint filing requirement. Your primary responsibility will be to convince USCIS that you have valid reasons to remain in the US and become a permanent resident. In addition, you need to prove that the marriage was genuine and that the relationship was not a mere business deal to outsmart US immigration laws.
In addition, you will also be required to submit a written explanation about why the marriage ended.
If, for instance, USCIS finds out that you were responsible for ending the marriage by abandoning your spouse or being unfaithful, your request for removing conditions on your residence may get denied.
How to Apply to Remove the Conditions
You can submit Form I-751 jointly with your spouse, who is a lawful permanent resident or a US citizen, to remove the conditions on your residence. But in case you have to request a waiver, you can submit the Form on your own, without their signature. The current fee for Form I-751 is $595 plus an $85 biometric service fee. If you have children under 21, they can also apply to remove conditions together with you. Children must fill out a separate form to get their permanent green card.
Any form submitted with an incorrect fee or without the required signature(s) will be rejected by USCIS. You must also make sure that you submit all of the required evidence to support your case. We highly recommend that you do get the proper legal advice to do this right the first time.
Checklist and Required Evidence
There are many documents that you will need to submit with your Form I-751. Before filling out and submitting the Form, it is recommended that you go through the following requirements. You are not required to submit any original documents (unless specified). Any documents in a foreign language must be accompanied by a certified English translation.
If you are filing a Form I-751 with a waiver, make sure you provide the following:
Front and back copies of your Permanent Residence card and passport
Copies of any conditional permanent residency cards of children (if any)
Evidence of good faith relationship – submit copies of documents proving that the marriage was in good faith but has ended due to divorce
Dispositions on convictions, criminal charges, and arrests (if any)
An explanation of why you are filing with waiver for removing conditions
When to Apply to Remove Conditions on the Residence
You must file to remove the conditions of your permanent residency within the 90-day period before the expiration of your green card. If you fail to apply within the stipulated time, you can lose your status as a conditional permanent resident and eventually be removed from the US. USCIS will not send you a letter reminding you that you must apply. The burden is on you to make sure it is done correctly and on time.
What Happens If You Miss the 90-Day period?
If you miss the 90-day filing period, you may lose your permanent residency. The USCIS will send you a notice to appear at a hearing before an immigration judge. Your case will now be in front of a judge that will decide your fate in the United States. You have the right to review and rebut the evidence presented against you. You will have to convince the immigration judge that you should remain in the United States. This task is extremely difficult, costly, and may take a few years.
You will receive a written notice stating that you have failed to get the conditional status removed
The USCIS will automatically terminate your conditional permanent residence status, your work authorization and will initiate proceedings for your removal from the country
In some cases, USCIS will accept a late filing. You will have to present an explanation in writing stating the reasons for the late submission of the Form I-751. You have to explain the reasons that caused you to miss your filing deadline and how they were beyond your control. The final decision will be made by the USCIS after evaluating the evidence you provide.
Your Child’s Conditional Green Card
If your child also received a conditional green card, you can include your child with your I-751 petition. The child must also pay a biometrics fee and submit the required Form and documentation such as a copy of the permanent residency card, birth certificate, passport, etc.
You may also be required to attend an interview for eligibility to remove conditions on your residence. A separate letter will be sent with details of the time and place in case an interview is deemed necessary. After the interview, the USCIS officer will decide your case. You will receive a letter in the mail with the decision of the USCIS officer.
Once you have filed and submitted form I-751, the USCIS will provide a receipt and extend your permanent residence status for 24 months. This will allow you to continue to stay in the US after the expiration date on your green card. You can continue working, and you can also travel. If you move, make sure you change your address with USCIS so you can continue to receive the important notices about your case. If you get a Request for Additional Evidence, you must respond to USCIS on time.
US immigration laws are complex. Foreign nationals must ensure that any immigration benefit request is made on time and in the correct way. Our immigration attorneys urge that you seek the help of a qualified immigration attorney to represent you with your immigration process. You can contact us today to get our help. Call +1(407) 818-1244.