Marriage to a U.S. Citizen and Removal of Conditions

Termination of Conditional Residency (I-751)

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 require a waiver of the joint filing requirement if the non-citizen can establish:

1. Removal from the USA would result in extreme hardship;
2. The CPR entered the marriage in good faith, but the marriage was terminated (other than through death); OR
3. The CPR entered the marriage in good faith, but the petitioning spouse or parent battered the CPR spouse or child.

Their 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:

1. 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;
2. The CPR and petitioning spouse (unless deceased) appear for an interview; and
3. SCIS 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 see the April 2009 USCIS Memorandum.