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Who is a U.S. Conditional Resident?
There are two types of conditional residents. One based upon a family-based petition and the other based upon a business/investor petition. In this article, we will be focusing our discussion on family-based conditional residents.
A family-based conditional resident is the spouse or the stepchild of a US citizen who receives residency before the marriage that established the basis of the petition has existed for two years, at the time resident status is granted.
Are step-children Always Conditional Residents?
Not necessarily. Step-Children can also be considered U.S. legal permanent residents without conditions. Step children are only conditional residents if two circumstances exist:
1) 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
2) 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 will then enter the US as a permanent resident and not a conditional resident.
How Soon can you get your U.S. Citizenship if you have Conditional Residency?
A spouse of a US citizen may apply for citizenship after having U.S. legal permanent resident status for 3 years, even if 2 or more years of that period of time was under conditional residence.
Citizenship applications do not require that a person have completed the removal of conditions process. The removal of conditions application may still be pending a decision, and the conditional resident can apply for their citizenship if they have had their conditional resident status for 3 years. USCIS will generally schedule the adjudication of the I-751 (removal of conditions petition), on the same day as the N-400 (citizenship petition) interview.
On the other hand, step-children who are conditional residents must generally wait until they have had 5 years of legal permanent resident status with or without conditions, before they can apply for citizenship.
How Soon can you Apply for U.S. Citizenship if you are Divorces and Obtained U.S. Residency through Marriage?
If you obtained your U.S. residency by marrying a U.S. citizen, but are now divorced, you may be wondering if you can apply for U.S. citizenship after 3 years of having legal permanent residency or whether you have to wait the full 5 years.
In order to obtain U.S. citizenship after only 3 years of Legal Permanent Resident Status, you must continue to be married to a U.S. Citizen until your citizenship is granted, otherwise you have to wait until you have completed the full 5 years with legal permanent residency.
Can you Remove the Conditions of your Conditional Residency if you are Separated or Divorced?
If you are not together with your spouse, you may be able to file an I-751 self-petition to remove the conditions of your 2-year conditional residency, based upon divorce, a demonstration of extreme hardship, the death of the U.S. citizen spouse, or evidence that there was abuse by the U.S. citizen spouse in the relationship.
In all of these cases it is necessary for the beneficiary to demonstrate that the marriage was entered in good faith (evidence of good faith generally requires strong financial evidence including joint taxes, joint leases, insurance, bank records, bills and photos).
There is an “extreme hardship” exception that does not require you to show any evidence about your marital relationship, if you suffered an extreme hardship during your initial 2-year conditional residency that would become more difficult if you were to lose your legal permanent residency.
Bear in mind that to be able to apply for the removal of U.S. residency conditions, the beneficiary must have first obtained approval of the conditional residency.
Can you Apply for U.S. Citizenship before your I-751 Petition to Change your Conditional Status has been Approved? Is there a Benefit to this?
Yes, you may apply for U.S. citizenship before your I-751 petition to remove conditions is approved and there is a benefit to doing this, as generally the government has a policy to decide removal of conditions applications before adjudicating a citizenship application.
If you file a citizenship application before having received a decision on your application for removal of conditions (I-751), you will generally receive a final decision on your petition for removal of conditions promptly.
The other benefit to applying as soon as you are eligible is that the faster you apply for citizenship, the faster you are able to obtain U.S. citizenship and its numerous benefits including the right to vote, to travel outside the U.S. for periods longer than 180 days, the right to confer citizenship status on certain family members immediately, such as minor children and the right to petition for residency for children, parents and siblings.
Spouses and children of U.S. citizens are generally eligible to receive a green card (U.S. legal permanent residency) with shorter waiting periods than those of U.S. residents.
