Conditional permanent residents with a green card based upon marriage must seek to remove the condition from their permanent resident status. Foreign nationals approved for permanent residence within two years of marriage are granted conditional green car, which expires two years from the date of approval. A green card is conditional if it mentions the category "CR."
The conditional permanent resident status holder must file Form I-751, a petition to remove a condition from the green card. Once the condition is removed, the ten-year green card is issued if USCIS determines that the couple are living in a genuine marriage.
In the last ninety days of the conditional green card expiry, the spouse filed a petition on Form I-751 to remove the condition. Delayed filing may be excused under extraordinary circumstances; otherwise, the conditional resident status would terminate, giving rise to the possibility of removal, i.e., deportation.
The Form I-751 petition is usually filed jointly. Sometimes USCIS requires the parties to come for an interview. When joint filing is not possible, i.e., death, divorce or separation, or abuse, the foreign national spouse can seek a waiver:
Good faith marriage, or
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Extreme hardship, or
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Abuse (spouse or child)
Whether the conditional resident spouse files jointly or as a waiver application, the USCIS inquiry remains the same, i.e., the marriage was genuine and not a sham. Once USCIS finds fraud, it becomes an uphill task to reverse it and get a favorable decision.
When the spouses are separated or divorced or even controlling, signs of non-cooperation in joint filing appear. Foreign national spouse becomes so distraught that (s)he loses the capacity and the power to present a well-prepared I-751 file to the USCIS. It is good to take the help of a knowledgeable immigration attorney. Insufficient documents may lead to denial based on misrepresentation or marriage fraud with the possibility of deportation, also known as removal.
Failure to prove marriage bonafides does not mean there is fraud in marriage, but USCIS frequently mixes it up with a finding of fraud. It is, therefore, extremely important that the foreign nationals timely seek the help of an attorney to avoid drastic consequences.
USCIS' denial can be appealed to the Board of Immigration Appeal (BIA), although BIA applies a higher level of scrutiny in misrepresentation and marriage fraud cases. If the conditional resident is placed in removal proceedings before the Immigration Court, the Court can renew permanent residence status and remove the condition.
Termination of the permanent residence status is avoidable if the conditional resident spouse acts timely to preserve their immigration status.