As you may have heard, the USCIS announced that starting Sept. 4, 2021, it will be extending the time that I-751 and I-829 receipt notices can be used to show evidence of status from 18 to 24 months [1], when presented together with a Permanent Resident Card or “Green Card”, for petitioners who properly file to Remove Conditions of Residence [2] (form I-751 for family petitions, or Form I-829, for investors). This change is being made to accommodate the long processing times for Form I-751 and Form I-829, which have increased in the past year.
Who needs to remove conditions of their green card?
Anyone who received a U.S. Conditional Permanent Residency, which is valid for 2 years only. This is normally the case for a spouse or stepchild of a U.S. citizen who received residency before the marriage that is the basis of the petition has existed for two years, at the time resident status is approved; and for U.S. residency based on investment (EB-5 Residency Category).
Below are answers to some of the most common frequently asked questions about conditional residency based upon marriage and the application for removal of conditions, I-751 [2].
1. Is a stepchild always a conditional resident?
No, they can also be legal permanent residents without conditions. Step children are only conditional residents if two circumstances exist:
- The marriage between the parent and step parent has existed for less than two years at the time the stepchild is granted resident status; and
- The natural parent is granted legal permanent resident status, regardless of whether it is conditional or not.
For example, a step-father applies for residency for a step-child who is outside the US and the step father has been married to the step-child’s parent for one year. The residency petition is approved and sent to the consulate so the step-child can obtain his green card. The process at the consulate takes 12 months before the residency for the step-child is ultimately approved. The child enters the US as a permanent resident and not a conditional resident.
2. What documentation is needed to file an I-751 to remove conditions on U.S. residency based on a marriage Green Card petition?
The I-751 petition for the removal of residency conditions requires that the applicant submit evidence demonstrating that the underlying marital relationship on which the residency was based, was entered in good faith and not for immigration benefits only. Good evidence will show that the couple:
- Has resided at the same address (i.e. copy of lease in both names, state licenses or identifications, medical, employment and school records, etc.)
- Has shared financial assets and liabilities (i.e., bills in both names, joint bank account in which each person deposits their paycheck, joint taxes, joint insurance policies, etc.)
Individuals should exercise care when filling out any public or governmental forms (at schools, hospitals, banks, employers, etc.) to make sure that all the records reflect the correct marital status and address.
3. Can conditions of residency still be removed if you are divorced or no longer with your spouse?
In certain circumstances a person may file the removal of Residency conditions application I-751 [2] on their own without their spouse. This can be done at any time after they were granted conditional resident status and before they are removed from the United States, if the underlying marriage upon which the residency was based was entered in good faith and:
- Their spouse or step-parent died
- Their parent and step-parent terminated their marriage through divorce, annulment or a legal separation
- The child or their parent were battered or subjected to extreme cruelty by the petitioning spouse or step-parent
- The termination of their status and removal from the United States would result in extreme hardship
In all these circumstances it is still critical to provide all the documentation proving that the marriage, which was the basis of the conditional green card approval, was entered in good faith and it is key for the success of the petition.
4. How soon can conditional residents apply for U.S. citizenship?
Spouses of US citizens may apply for citizenship [3] 90 days before having had U.S. resident status for 3 years, even if it was conditional for 2 years, if they have been married for those 3 years.
On the other hand, conditional resident stepchildren (and investor conditional residents) must wait until 90 days before the 5 year anniversary of their Green Card (with or without conditions) to apply for their citizenship, unless they have been married to a U.S. citizen for 3 years.
5. Can conditional residents apply for citizenship while their I-751 application to remove conditions is pending?
Yes, conditional residents may apply 90 days before the 3 year Green Card anniversary even if the application for the removal of conditions, I-751 is still pending.
6. If you qualify, is there a benefit to applying for citizenship while your removal of conditions application, I-751 is still pending?
Yes, there may be a benefit to applying for citizenship if you are within 90 days of your 3 year Green Card anniversary as generally the government decides removal of conditions applications before making a decision on a citizenship application. Therefore, this will sometimes speed up the final decision on your removal of conditions application.
The additional benefit of applying as soon as possible for your citizenship which is that you will be able to enjoy the benefits of citizenship sooner, such as the right to vote, to travel and remain outside the U.S. for more than 180 days, the right to confer citizenship status on certain family members immediately, such as minor children and the right to petition for U.S. residency for your children, parents and siblings with shorter waiting periods than if you were a U.S. resident.
Contact an immigration lawyer experienced with I-751 petitions [2]
If you would like legal representation to remove conditions from your Green Card, whether through a joint I-751 petition or a I-751 self-petition, from one of our experienced immigration lawyers [4] in Boston, call for an appointment at 617-303-2600 [5], or fill our online appointment request form [6].
Our office can also assist you with any other immigration [4], criminal defense [7] or personal injury matters [8]. Please share this information with anyone you think may benefit from it.