Why Some Marriage-Based Green Cards Are "Conditional"

Immigrants in recent marriages (less than two years old) might not receive U.S. permanent residence right away.

By , J.D. · University of Washington School of Law

If you are a foreign national who had been married to your U.S. citizen spouse for less than two years when you either arrived in the United States on an immigrant visa or were approved for a green card (adjustment of status) based on that marriage, you will have begun life in America as a conditional, not permanent resident. And by definition, every immigrant who enters the U.S. on a K-1 fiancé visa and then successfully applies to adjust status will start out as a conditional resident.

Let's take a closer look at why the law requires this, who it applies to, and what it means for you in terms of upcoming requirements.

Why Some Immigrants Applying Based on Marriage Receive Only U.S. Conditional Residency at First

In any marriage-based application for a green card, U.S. immigration authorities look closely at whether the marriage is the real thing (bona fide), not just a fraud or sham to get the immigrant a green card. Due to concern that recent marriages are more likely to be shams, the immigration laws basically gave U.S. Citizenship and Immigration Services (USCIS) a second chance to review the validity of the marriage, by initially making the new immigrant a "conditional," not "permanent" resident.

In most ways, conditional residents have the same rights as permanent residents. They can travel in and out of the U.S., accept employment without separately applying for a work permit, and start working toward U.S. citizenship. (Time as a conditional resident counts as permanent residence for purposes of applying for naturalization, so long as the immigrant is eventually approved for permanent residence.)

The key difference is that conditional residency expires after a two-year "testing" period. Not long before the expiration date, the immigrant will have to apply for permanent status. That application process normally involves proving that the marriage is ongoing, and supplying further proof (in addition to that already submitted over the course of the earlier application process) that the couple is truly establishing a life together.

Exceptions exist to the joint filing requirement exist, however. These are discussed below.

How to Apply to Remove Conditions on U.S. Residence

In order to remove the conditions on residence, the immigrant and the U.S. citizen spouse must submit a joint petition on Form I-751 to USCIS. This form is available for free download on the USCIS website. The timing of submitting this form is very important: It must be sent within the 90-day period before the immigrant's conditional residence ends.

Also important is submitting documents to show the ongoing, real marriage, such as copies of joint leases, bank accounts, memberships, and more. Birth certificates of any children born to the marriage are particularly powerful evidence.

USCIS may, after reviewing the I-751, decide to interview both the immigrant and the U.S. spouse, to take a closer look at whether the marriage is real. If USCIS determines that the marriage is not real, the immigrant could lose status entirely and have to leave the United States.

What If the Marriage Ends During the Conditional Period?

If the marriage has ended before the immigrant becomes a permanent resident, such as through death or divorce, or the U.S. spouse has become abusive, it is possible, under limited circumstances, for the immigrant to apply for a waiver of the joint petition requirement. The immigrant would submit the I-751 solo.

In addition to providing proof that the marriage was the real thing, the immigrant will have to show documentary evidence of the claimed basis for the waiver. Also see:

You'd likely want an attorney's help with any of these.

Which Immigrants Do Not Need to Worry About Conditional Residence

If the marriage is already two years old when the immigrant either arrives at the U.S. border with an immigrant visa or receives approval for a spousal green card, they will receive permanent residency and won't have to worry about the status expiring (although the actual card will need to be replaced once every ten years). This might be an argument for waiting longer than you'd originally planned to enter the U.S. using your immigrant visa (but watch out for its eventual expiration date).

Getting Legal Help

For questions on any of this, and help with the challenging task of preparing a waiver application, consult an experienced immigration attorney. This type of application involves more than just filling out forms; the lawyer will need to collect evidence and draft a cover letter or memo explaining how it all fits together and why the law and facts support a grant of permanent residence.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you