Lawful permanent residents have the right to live and work permanently in the United States. However, if your green card was obtained through marriage, your permanent resident status is conditional for the first two years from the date you were granted that status. This means that from the day you entered the United States with an immigrant visa or adjusted your status, you were granted "conditional resident status," because you must prove that you did not enter into the marriage to evade immigration laws.
You must file a "joint petition" with your spouse to remove the conditions on your residence. You must apply to remove these conditions within the 90-day period before the second anniversary of the date you became a "conditional resident." The expiration date on your "Alien Registration Card (commonly known as a green card)" is the date you reach your two-year anniversary as a conditional resident. If you do not apply to remove the conditions within the 90-day window before the two-year anniversary, you may lose your conditional resident status and be subject to deportation.
If you and your spouse have ended your marriage, or if you have been battered or subjected to extreme cruelty by your spouse, you may apply for a waiver of the "joint filing" requirement. In such cases, you may apply to remove the conditions on your permanent resident status at any time after becoming a conditional resident and before you are placed in deportation proceedings.
If your child obtained conditional resident status within 90 days of the date you obtained your conditional permanent resident status, you may include your child on your application to remove the conditions on your residence. If your child obtained conditional resident status more than 90 days after you obtained yours, they must file a separate application.
I. Relevant Regulations
The legal provisions regarding conditional resident status obtained through marriage are found in Section 216 of the Immigration and Nationality Act. The specific eligibility requirements and procedures for removing the conditions on permanent residence are set forth in Title 8 of the Code of Federal Regulations (CFR), Section 216.
II. Eligibility
You may apply to remove the conditions on your permanent residence if you meet any of the following conditions:
1. You are still in a marriage with the same U.S. citizen or permanent resident after two years (if your child obtained conditional resident status at the same time as you or within 90 days of you obtaining your conditional resident status);
2. You are a child and cannot be included in your parent's application for a valid reason;
3. You are a widow or widower who entered into a bona fide marriage;
4. You entered into a bona fide marriage, but the marriage ended in divorce or annulment;
5. You entered into a bona fide marriage, but you were battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse, or you or your child were subjected to extreme hardship;
6. The termination of your (conditional) permanent resident status would result in extreme hardship to you.
III. Late Filing to Remove Conditions on Residence
The form to apply for the removal of conditions is called Form I-751 (Petition to Remove the Conditions on Residence). If you fail to properly file Form I-751 within the 90-day period before the second anniversary of becoming a conditional resident, your conditional resident status will automatically terminate, and U.S. Citizenship and Immigration Services (USCIS) will initiate deportation proceedings against you. You will receive a letter from USCIS notifying you that the conditions on your residence have not been removed, and you will also receive a notice to appear for an immigration hearing. At the hearing, you may examine and rebut the evidence against you. You are responsible for proving that you have complied with the regulations (USCIS does not bear the burden of proving that you failed to comply). After the 90-day period has passed, if you can prove to the director of the service center in writing that there was good cause for your failure to file the application on time, you may still file Form I-751. The center director has the discretion to approve the application and restore your permanent resident status.
IV. How to Obtain a Waiver of the Joint Filing Requirement
If you are unable to file a joint petition with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration for multiple waivers. You may request a waiver of the joint filing requirement if: 1. Your deportation would cause extreme hardship; 2. You entered into a bona fide marriage, not to evade immigration laws, but the marriage ended in annulment or divorce, and the failure to file on time was not your fault; 3. You entered into a bona fide marriage, not to evade immigration laws, but you were battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse during the marriage, and the failure to file on time was not your fault.
V. What if I am in the process of a divorce but it is not yet finalized?
If you are unable to file a joint petition with your spouse to remove the conditions on your residence because you are in the process of a divorce, you may be exempt from the joint filing requirement based on the "bona fide marriage" exception. You do not need to file the application to remove conditions until the marriage has ended.
VI. Can I get a work permit?
As a lawful permanent resident, you should have already received a Permanent Resident Card (green card). It will prove your right to live and work permanently in the United States. If you file Form I-751 on time, U.S. Citizenship and Immigration Services will extend your conditional resident status while it is being processed, for up to 12 months.
VII. Checking the Status of Your Application
You may check the status of your application with the U.S. Citizenship and Immigration Services office that accepted your application form. Before inquiring, be prepared to provide specific information regarding your application to U.S. Citizenship and Immigration Services.
VIII. How to Appeal
If you apply for a waiver of the conditions on your immigration status but are not approved, you will receive a letter explaining why your application was denied. When your application is denied, deportation proceedings against you will begin immediately. During the deportation proceedings, an immigration judge will review the case of your denied application. During the review, U.S. Citizenship and Immigration Services must prove that your application contained inaccuracies and that the denial of your application was appropriate. If the immigration judge rules to deport you, you may still appeal. Generally, you may appeal within 33 days after the immigration judge's decision to deport you. After you file your notice of appeal and pay the fee, the appeal will be heard by the Board of Immigration Appeals in Washington, D.C.