Why Some Marriage-Based Green Cards Are "Conditional"

If you are an immigrant who recently arrived to the US based on a marriage visa, you will need to understand why your marriage is considered conditional before you can apply for permanent residence.

By , J.D.

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

Let's take a closer look at who this applies to and what it means.

Purpose of Conditional Residency

In any marriage-based application for a green card, the immigration authorities look very closely at whether the marriage is the real thing, not just a 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, a conditional resident has the same rights as a permanent resident. He or she 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. Just before the expiration date, the immigrant will have to apply for permanent status. That application process involves proving that the marriage is ongoing, and supplying further proof (in addition to that already submitted over the course of the application process) that the couple is truly establishing a life together. (If the marriage has ended, however, certain exceptions are available, potentially allowing the immigrant to become a permanent resident regardless.)

How to Apply to Remove Conditions on 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 you and your spouse, to take a closer look at whether your 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.

If the marriage has ended, such as through death or divorce, it is possible, under certain limited circumstances, for the immigrant to apply for a waiver of the joint petition requirement. He or she would then 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.

Who Does 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, he or she 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).

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