The HMA Law FirM



There are many ways a person can gain permanent residency in the U.S. but a person’s permanent residence status could be conditional if the date that he or she was admitted lawfully into the United States was on the basis of an immigrant visa for marriage to a U.S. citizen which is less than 2 years old. The person’s permanent residency is conditional, because it is necessary to furnish proof that the marriage did not take place for convenience and as a way of evading U.S. immigration laws.

In order to formally remove these conditions it is necessary to complete the I-751 form and it must be filed within 90 days just before the expiry date on the permanent residence card. This is the date that conditional residence runs out. If you do not properly file the Form I-751 (Petition to Remove the Conditions on Residence) within that 90-day period before your 2nd year of marriage has been reached as a conditional resident, your status as a conditional resident will terminated automatically and the USCIS will file removal proceedings.

You will be sent a notice from the USCIS, letting you know that you have not removed the conditions, and you will at the same time receive a “Notice to Appear” at a hearing. Note: placement in removal proceedings is mandatory. It will happen. However, take heart: This is the chance you get to renew your opportunity to get your conditional status removed. You can also use this as a “second bite at the apple” if you have not been able to convince USCIS that your marriage was genuine and your I-751 application has been denied.

Once USCIS reviews your I-751 and approves it, you will obtain unconditional lawful permanent residence. However, if it is denied again, you will be facing an order of removal, unless you can qualify for another benefit. It is possible, for example, to readjust your status to conditional permanent residence if, for example, you are divorced from the first spouse and have remarried. See Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991).

When marriage takes place between a US and non-US citizen, the right to residency is not automatic to the foreign spouse as there are times when people get married simply to get a green card and not for genuine reasons. If you feel uncomfortable with filing a I-751 form and you have a genuine marriage but you are on a conditional residence visa you should speak with an experienced immigration attorney who will ensure you fit in with the USCIS requirements and you legitimately gain a green card.