Conditional permanent residents with green card based upon marriage must seek to remove the condition from their permanent resident status. Foreign nationals approved for permanent residnce within two years of marriage are granted conditional greencard. It expires in two years from the date of approval. Greencard is conditional if it mentions category "CR".
Conditional permanent resident status holder must file Form I-751, a petition to remove condition from the green card. Once the condition is removed; the greencard for ten years is issued if USCIS determines that the couple are living in genuine marriage.
In the last ninety days of expiry of the conditional greencard the spouses file petition on Form I-751 to remove 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.
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 waiver:
- Good faith marriage, or
- Extreme hardship, or
- Abuse (spouse or child)
Whether the conditional resident spouse files jointly or as a waiver application USCIS inquiry remains the same i.e. the marriage was genuine and not sham marriage. 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 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 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 condition.
Termination of the permanent residence status is avoidable if conditional resident spouse acts timely to preserve his or her immigration status.
