So you and your spouse got married, then he/she sponsored you to obtain a green card, and then USCIS granted your application & sent you a conditional green card. Now, it is the time for you to remove the conditions off your green card but your spouse refuses to help you remove the conditions. Does this scenario ring a bell? The Good News is, it is not the end of the world, and there is a solution for you!
1.What is a Conditional Green Card and Who is Granted One?
For those who do not know, a conditional permanent resident card is a resident card granted on a conditional basis based on the amount of years the couple has been married. More specifically, for couples who have been married less than two years at the time of the resident card filing process, a “conditional” resident card is issued as a safety guard against marriage fraud. It confers upon the beneficiary all the rights and benefits of a regular permanent resident card, except it lasts only two years as opposed to ten years and it has “conditions” that must be jointly removed by both spouses before the end of two years.
2. What If My Spouse Refuses to Help Me Remove the Conditions, Am I Stuck?
The short answer is no, you are not stuck, and there are other options. Generally, the couple is expected to jointly file the I-751 Petition to Remove Conditions at least 90 days before the end of the two year duration of the conditional green card. Unlike some other immigration benefits, the conditional green card CANNOT be renewed. If the couple cannot jointly apply to remove the conditions, then the spouse seeking to remove the conditions can solely file if he/she can show he/she entered the marriage in good faith (i.e. not to evade immigration laws) but the marriage ended in divorce or annulment, 2) you entered the marriage in good faith, but during the marriage you were battered by, or subjected to extreme cruelty committed by your U.S. citizen of legal permanent resident spouse, and you were not at fault in failing to file a joint petition, 3) your deportation or removal will result in extreme hardship, OR 4) you entered the marriage in good faith, but your spouse subsequently died. If any of these exceptions apply to you then you can file the 1-751 petition along with a waiver to waive the joint filing requirement based on one of the above categories.
3. What if I or My Spouse has Filed for a Divorce, but the Matter is Still in Divorce Proceedings?
If you are in divorce or annulment proceedings, you cannot file the I-751 until you have been granted a divorce/annulment. However, in a 2009 USCIS issued a Memo ( 2009 I-751 Memo), stating that if your divorce/annulment can be finalized within 87 days after filing, the USCIS will accept the application.
4. What is Extreme Hardship?
Extreme hardship is an immigration standard used to determine whether to grant certain benefits with regards to some immigration petitions. Extreme hardship has been defined by case law to be something more than the normal hardship of a person similarly situated. This is indeed a difficult standard to meet and requires a lot of proof to prevail on a waiver based on extreme hardship.
5. What If I Missed the 90 day period in which to file the 751 Petition?
If you fail to properly file the Form I-751 (Petition to Remove the Conditions on Residence) within 90-days before your second anniversary as a conditional resident, your conditional resident status will automatically be terminated and the USCIS will initiate removal proceedings against you. You will receive a notice from the USCIS stating that you have failed to remove the conditions, and you will also receive a Notice to Appear at a hearing. At the hearing you may review and rebut the evidence against you.
The Form I-751 can be filed after the 90-day period if you can prove in writing that there was good cause for failing to file the petition on time. The director of the Service Center has the discretion of whether or not to approve the petition and restore your permanent resident status. Some examples of good cause include, but are not limited to: hospitalization, the recent birth of a child (particularly if there were complications), long term illness, death of a family member, and a family member on active duty with the U.S. military. However, even with this allowance, the best way to go is to just file the I-751 petition on time and thereby avoid the good cause requirement.
6. What Do I Need to Establish a Good Faith Marriage?
- Lease or mortgage agreement showing joint residence or ownership of communal residence;
- Birth certificates of children born to the marriage;
- Marriage Certificate
- Financial records showing joint funds such as savings and checking accounts, Joint federal and state tax returns, Joint insurance policies;
- Joint utility bills;
- Affidavits of third parties having knowledge your bona fide marital relationship;
- Any other evidence to establish that the couple did not get married to evade the laws of the United States;
Contact our office to help you file the 751 and Waiver (if need be). “You Have the Need, We Have the Expertise”
Call Now @ 901-614-9090!
Until Next Time,
Liz Wafula, Esq!
Photo Credit: https://www.flickr.com/photos/poltorakota/10184254756/