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Removing of Conditional Residency
Joint Petition
If the couple is still married and cooperative after the two year period, they must file a form I-751, Joint Petition to Remove Conditions on Residence, within 90 days before the conditional residency period ends. The expiration date is listed on the I-551 resident card. Although USCIS must try to notify a conditional resident at the start of the 90 day period, the fact that the conditional resident does not receive the notice will not be a defense to a person's failure to timely file the joint petition. It is important to note that failure to file within the 90 day period may result in a conditional resident automatically losing his or her status and make him/her subject to removal.
However, the I-751 may be filed late if you are able to demonstrate "good cause" for the late filing and that the length of delay was reasonable. "Good cause" means that the applicants must show they were not to blame for filing late and that the reasons for not filing on time were beyond their control.
While completing the I-751 is relatively easy, applicants should be aware that completing the form does bring up legal issues which may subject the applicants to legal consequences such as whether this was a sham marriage and its inception. For instance, in Parts 1 and 4 applicants are asked about their home address. If the applicants live apart they should provide an explanation, otherwise USCIS will suspect marriage fraud and require an interview.
Upon filing of the joint petition, a person's conditional residence status is automatically extended for one year. If USCIS takes over a year to review the petition, then USCIS should provide documentation of the extended status for travel or employment purposes in the form of either a temporary I-551 stamp in the passport or an extended expiration date on Form I-94.
Once USCIS receives and reviews the petition, they may approve or deny the petition. If the petition is denied, the conditional resident may be placed in removal proceedings. The conditional resident may ask for review of the denial by:
1. Renewing the joint petition before an immigration judge;
2. Requesting the district director to certify the case USCIS Administrative Appeals Unit;
3. Filing a motion to reopen by showing new facts; or
4. Filing a motion to reconsider.
USCIS may also schedule an interview if they suspect marriage fraud. If an interview is scheduled, it must be scheduled within 90 days of the filing of the petition and the couple must attend the interview. Couples are strongly advised against going to the interview without an experienced lawyer. If you are scheduled for an interview, please contact our Columbia, MD immigration law office to prevent the opportunity for abuse on the part of the USCIS Examiner.
Waivers
There are situations when a joint petition cannot be filed. For instance, a marriage may have ended in death, divorce, or annulment. In other instances, the marriage may not have ended at all and in fact the US citizen or resident spouse may be hostile or abusive and is refusing to help the conditional resident spouse.
A conditional resident spouse who finds themself in this position is not without hope and may be eligible for waiver of the requirement for a joint petition. The conditional resident must show that:
1. The marriage began in "good faith” and has ended (other than through death) but the conditional resident was not at fault for the marriage ending; or
2. "Extreme hardship" will result in a conditional resident reported; or
3. The conditional resident married in good faith and during the marriage he/she or his/her child was battered or subjected to extreme cruelty by a lawful permanent resident or US citizen and he/she is not at fault in failing to meet conditional residency requirements.
Waivers may be filed at any time and the conditional resident need not wait for the 90 day period before the expiration of his/her conditional residency period. However, it should be noted that waivers are not easily granted by USCIS. Thus, if you are conditional resident who is considering filing a waiver, please contact Maryland immigration attorney Van T. Doan for assistance at (443) 545-2121.
Categories: Immigration Law
