Converting Conditional Residency to Permanent Residency: The I-751 Application

If you are married less than two years at the time when you are first granted legal residency, then you will receive conditional legal residency status along with a two-year green card. This means that your legal residency status is “conditional” for the next 24 months provided that you stay married and remain living with your U.S. citizen spouse. It is as though you are a “temporary” legal resident for two years. This testing period (spanning two years for new marriages) is intended to help USCIS identify marriages that are fraudulent. Later, as you are approaching the two-year anniversary, you must take another step to convert your conditional legal residency to permanent legal residency; otherwise, you will fall out of status and become unlawfully present in the U.S.

What Step Must I Take?

In order to convert from a “conditional” to a “permanent” legal permanent resident, the couple must file “Form I-751, Petition to Remove Conditions on Residence” just prior to the two-year anniversary date of when the green card was first issued. By filing Form I-751, you are both telling the government that you are still married to and living together, and so you are asking the government to remove the conditional status on your legal residency, and thereby convert your conditional legal residency to permanent legal residency.

When Should I File the I-751 Form?

You will need to file the Form I-751 during the 90-day period, before the conditional (two-year) green card expires. If the Form I-751 is filed too early (before the 90-day period has started), USCIS will reject your application, and you will have to refile it later, when you are within the 90-day window.

What Happens if We File After the 90-Day Window?

The USCIS will revoke your United States residency status if you file the Form I-751 late, or after the expiration of your conditional residence. They may begin removal proceedings against you. However, you may be able to overcome the consequences of missing the deadline.

If you can demonstrate a good basis for the filing late, and that the delay was considered “reasonable” given the circumstances, your late-file petition may be approved by USCIS. You will need help from an attorney to request that USCIS accepts your late petition – the lawyer will help you determine what documents are needed to prove that you deserve special consideration and treatment and an exception to the deadline requirement.

What if I Can’t File the I-751 Jointly With my Spouse Because We are Separated or Divorced?

Some marriages don’t make it to the two-year anniversary, and the couple is unable to jointly file the I-751 petition. If that happens to you, there are some exceptions in the law that may apply to you, which allow you to file the Form I-751 alone and request a waiver of the joint filing requirement, so long as you can show one of the following conditions:

• That you entered into the marriage in good faith, but unfortunately, the marriage did not work out and was terminated in divorce.
• That you entered into the marriage in good faith, but unfortunately, your U.S. citizen spouse died during the two-year period.
• That you entered into the marriage in good faith, but that you were subjected to physical battering and/or extreme mental cruelty by your U.S. citizen spouse.
• That you would suffer extreme hardship if you are forced to return to your home country.

When requesting one of the exceptions noted above to the joint-filing requirement, the immigrant can still utilize the Form I-751, but would have to provide additional documents that proved that the claimed exception applies. These types of cases can be difficult to prove. Generally speaking, an I-751 application will be approved much more readily if it is signed and submitted by both spouses, than if it is signed and submitted by only one spouse.

Do I Need a Lawyer to File the I-751 Application?

An experienced immigration attorney can walk you through the process of collecting the right documentary evidence for your case. Preparing the form is easy, however, collecting the right documents to prove your case is the tricky part. If you submit the right documents, and a large quantity of documents, then your application will be easily approved, and the 10-year green card will be mailed to you.

But if you do not submit the right documents or a large quantity of documents to prove that you are still married and living together, then you will be called in for an interview. When you are called in for an interview on an I-751 application that is a sign that USCIS is already inclined to deny your application. So the goal here is to submit the right documents, and the right quantity of documents, from the very beginning of your case, so that your case is clearly approvable and there is no need for an interview.

Note: If you’re requesting a waiver of the joint-filing requirement, then USCIS will be far more inclined to deny your application. Therefore, it is essential for you to get help from an experienced immigration attorney. Do not risk removal from the U.S. because you don’t want to spend money on an attorney.