Conditional Residency and Divorce-Step Children of US Citizens

1. Who is a 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 newsletter 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.

2. Are step-children always conditional residents?

No, they can also be 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 enters the US as a permanent resident and not a conditional resident.

3. How can a step-child automatically become a U.S. citizen?

For the step-child to automatically become a U.S. citizen 4 criteria must be met:

• The child’s step-parent must have U.S. citizenship,
• The step-child must be under 18 years of age.
• The step-child must have legal permanent resident status, and
• The step-child must be in the custody of the step-parent who is a US citizen (custody does not require adoption).

If these criteria are met, the child should petition with either the USCIS or the Department of State to obtain a document identifying that they are a U.S. citizen.

4. What happens if the couple is separated? How can the conditions of a “conditional resident” be removed?

In this situation, conditions can be removed based upon divorce, a demonstration of hardship, 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 joint taxes, joint leases, insurance, bank records, bills and photos).

Bear in mind that to be able to apply for the removal of residency conditions, the beneficiary must have obtained first approval of the conditional residency.

5. 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 resident status for 3 years, even if two 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 be 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.

Step-children who are conditional residents must wait until they have had 5 years of resident status with or without conditions, before they can apply for citizenship, unless they are eligible for automatic citizenship.

6. Is there a benefit to applying for citizenship before your request to change your conditional status has been approved?

Yes, generally the government has a policy to decide removal of conditions applications before adjudicating a citizenship application. If you file a citizenship application before receiving a decision on your application for removal of conditions, you will generally receive a final decision on your application 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 citizenship and this has 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 eligible to receive a green card (residency) with shorter waiting periods than those of U.S. residents.