Removal of Conditions
Your permanent residence status is conditional if it is based on a marriage that was less than 2 years old. You are given conditional resident status on the day you are lawfully admitted to the United States on an immigrant visa or adjustment of your status to permanent residence. This happens, when after your marriage your spouse files a petition on your behalf to have your status adjusted in the US.
Your status is conditional because you are given time to prove that you did not get married to evade the immigration laws or to obtain immigration benefits in the United States. To remove these conditions, you must file a Petition to Remove the Conditions on Residence.
Generally, you may apply to remove your conditions on permanent residence if:
- You are still married to the same US citizen or permanent resident after 2 years (your children may be included in your application if they received their conditional resident status at the same time that you did or within 90 days);
- You are a child and cannot be included in the application of your parents for a valid reason;
- You are a widow or widower of a marriage that was entered into with US citizen in good faith;
- You entered into a marriage in good faith, but the marriage ended through divorce or annulment;
- You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your US citizen or permanent resident spouse;
- The termination of your conditional resident status would cause extreme hardship to you.
Generally, you and your spouse must apply together during the 90 days before the date on your conditional resident card would expire to remove conditions on your residence. In other words, 90 days before the second anniversary of your first green card (not second marriage anniversary). If you don't apply to remove conditions in time, you could lose your conditional resident status and be put in removal proceedings.
If you are no longer married to your ‘sponsor’ spouse, or if you have been battered or abused by your spouse, you can request to waive the joint filing requirement. In such cases, you may apply to remove conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the US.
Removal of conditions can be filed after the 90 days if you can prove in writing to the director of the appropriate Service Center that there was ‘good cause’ for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status.
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If you fail to file for removal of conditions accurately within the 90 days before your second anniversary (from the date on the Green Card) as a conditional resident:
- Your conditional resident status will automatically be terminated and USCIS will begin removal proceedings against you,
- You will receive a notice from USCIS telling you that you have failed to remove conditions,
- You will receive a Notice to Appear at a hearing. At the hearing, you may review and refute the evidence against you. You are responsible for proving that you complied with the requirements.
Your children may be included in your application if they got their conditional resident status at the same time that as you did yours, or within 90 days since you got yours. Your children must file separate applications if they received conditional resident status more than 90 days after you did or were granted conditional resident status independently. In this case, they will need to file separate petitions.
As a permanent resident, you should have received a green card. This card will continue to prove that you have a right to live and work in the United States. If you file for removal of conditions on time, the USCIS will extend your conditional resident status until a decision has been made on your application. The USCIS will send you a notice concerning this.
The removal of conditions can be filed regardless of whether you are physically present in the US at the time of filing. However, you must return to the US with your spouse and your children, as an interview may be required to demonstrate eligibility to remove conditions on your residence.
This interview, if required, will closely mirror the original interview that you and your spouse went through to obtain the marriage-based green card. You will need to answer questions presented by the assessment agent (officer) that will help them determine your eligibility. They will likely revolve around your relationship and, if necessary, your divorce or divorce proceedings. Be prepared to answer personal questions to the best of your ability. Responding “I don’t know” or “I’m not comfortable answering” is much preferred to lying. Not passing the interview could mean a problem with your green card, which could be solved with an experienced attorney’s help, while fraud (lying at the interview) could cost you your green card altogether and possibly bar you from future attempts to enter the US.
If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:
- You filed a waiver request, the USCIS will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable);
- You filed your petition for removal of conditions jointly, the USCIS will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.
Upon receipt of the final divorce decree or annulment within the stated period, we will revise the petition, to state that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage.