If a non-citizen is married to a U.S. Citizen for less than 2 years at the time of the Immigration (Green Card) interview, the foreign national is granted Conditional Permanent Resident Status (CPR). After two years, the CPR must file a petition to remove the conditions on form I-751 with USCIS.
This application is to be filed jointly, by both husband and wife or the foreign national may request a waiver of the joint filing requirement if the non-citizen can establish:
- Removal from the USA would result in extreme hardship;
- The CPR entered the marriage in good faith, but the marriage was terminated (other than through death); OR
- The CPR entered the marriage in good faith, but the petitioning spouse or parent battered the CPR spouse or child.
There must be a final divorce in order to request a waiver.
If not divorced, a removal of conditions application must be filed jointly. To obtain approval, it must be demonstrated that:
- The CPR and petitioning spouse (unless deceased) jointly file an 1-751 within the 90 days immediately before the two year anniversary of the date the CPR obtained permanent resident status;
- The CPR and petitioning spouse (unless deceased) appear for an interview; and
- USCIS determines the following facts are true:
- The marriage was legal where it took place;
- The marriage has not been terminated;
- The marriage was not entered into for the purpose of procuring permanent resident status; and
- No fee (other than to an attorney for filing assistance) was paid for the filing of the underlying 1-130 or 1-129F.
The statute and regulations require approval of the 1-751 petition if the above conditions are met. USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.
For more information, please contact our office or visit our website at www.rmlegal.com.
