When a U.S. citizen or lawful permanent resident marries a foreign national, the foreign national can almost immediately apply for a green card.  However, permanent residence granted through marriage is conditional for two years if the couple has been married less than two years on the date of the foreign national spouse’s adjustment of status.  The United States Citizenship and Immigration Services (USCIS) defines a conditional resident as any foreign national “granted permanent resident status on a conditional basis, who is required to petition for the removal of the set conditions before the second anniversary of the approval of his or her conditional status.”  The U.S. citizen/lawful permanent resident and foreign national spouse must jointly file Form I-751, Petition to Remove the Conditions of Residence, to make the the foreign national’s residence truly permanent.

General Requirements For Removal Of Conditions

To prove the conditions of residence should be removed, the married couple must submit evidence to the USCIS that the marriage was entered in good faith, including:

•    Birth certificate(s) of children born to the marriage;
•    Lease or mortgage contracts showing joint occupancy and/or ownership of the couple’s communal residence;
•    Financial records showing joint ownership of assets and liabilities, such as joint savings and checking accounts, joint federal and state tax returns, insurance policies that show the other spouse as the beneficiary, joint utility bills, joint installments, or other loans;
•    Affidavits from two people that have known the married couple since conditional residence was granted and have personal knowledge of their marriage and relationship; and/or
•    Any other documents to establish the marriage was not entered into in order to evade U.S. immigration laws.

The petition to remove conditional residence must be filed during the last 90 days of the foreign national spouse’s conditional status.  If the conditions to residence are not removed before the two year conditional period expires, the foreign national will lose their green card status.

Waiver Of Joint Filing Requirement

Under certain circumstances, the foreign national spouse may be able to file Form I-751 individually, on their own behalf.  The foreign spouse may file for a waiver of the joint filing requirement if they entered the marriage in good faith and one of the following conditions are met:

•    Their spouse subsequently died;
•    The marriage was later terminated due to divorce or annulment;
•    The foreign national has remained married, but has been battered or subjected to extreme cruelty by their U.S. citizen or permanent resident spouse; or
•    The termination of status and removal would result in extreme hardship.

A waiver of the joint filing requirement will not be granted if Form I-751 is filed based on a termination of the marriage, but the foreign national spouse is only separated from their spouse, or divorce or annulment proceedings are still pending.  The marriage must be fully terminated in order to file for a waiver of the joint filing requirement pursuant to the termination of marriage provision.

Interview Requirement

According to U.S. immigration law, the married couple will be required to appear for an interview at the USCIS to remove the conditions of residence.  However, based upon the evidence submitted with Form I-751, the USCIS Regional Director may waive the interview requirement at their discretion.  So long as the petition fully demonstrates, and the USCIS Regional Director is satisfied, that the marriage was entered in good faith, the interview requirement will be waived.  If the USCIS Regional Director does not believe the marriage is valid, they will require the District Office to conduct an interview prior to removing the conditions of residence.