If a foreign national obtains lawful residence by way of a marriage that is less than 2 years old at the time the green card is approved, then they are given a “conditional” resident status. If a marriage between a U.S. citizen and a foreign national is less than two years old, the foreign national’s residence is issued on a conditional basis. Under conditional resident status, the foreign national’s green card will expire after two years. The couple must petition to remove the 2 year condition via the I-751 form.

If the couple is filing jointly, the I-751 form must be filed within the 90 day period preceding the expiration of the spouse’s two year conditional resident status. The form requires the signature of both spouses, unless the applicant is requesting a waiver of the joint filing requirement. If approved, the spouse’s immigration status will be extended to a 10-year green card that is renewable on a pro forma basis.

Documenting the Marriage

In order to remove the condition on residence, the USCIS requires the applicant to provide evidence that the marriage is bona fide. A typical I-751 application includes evidence of a shared residence and financial commingling, such as:

  • Birth certificates of any children
  • Pictures of the couple together
  • Evidence of joint travel
  • Joint financial, insurance or bank statements containing both names
  • Joint tax returns
  • Titles to property demonstrating joint ownership
  • Sworn affidavits from family members or friends
  • Cards or letters addressed to both spouses at one address

Filing the I-751 alone due to divorce or other factors.

A foreign national spouse can file the I-751 individually under certain situation and still keep their lawful permanent residence. The applicant can request a waiver of the joint filing requirement in the following situations:

  • The marriage has terminated by divorce or death of the spouse, but the marriage was entered into in good faith; or
  • The foreign national spouse would suffer extreme hardship if removed from the U.S., and that hardship arose during the course of the marriage; or
  • The foreign national was a victim of domestic violence (battery or extreme cruelty).

If the foreign national is requesting a waiver of the joint filing requirement, then the I-751 can be filed at anytime. It is not necessary to wait until the 90 day period prior to the expiration of the card.

If you would like assistance with your I-751 petition, either jointly filed or after a divorce, feel free to contact us by email, or at 415-627-9161.