Removal of Conditional Residence

A conditional resident of the United States is someone who has received a green card with an expiration date on it.  Conditional residency is granted to certain categories of aliens before they are granted the right to live in the U.S. on a permanent basis. There are two types of conditional residents that are allowed into the US. The one most people are familiar with is by being married to a United States citizen. Many people assume that if they adjust status based on marriage to a U.S. citizen, they will immediately become a permanent resident. This is not always the case, however. Many non-U.S. citizens are given a conditional residency within the country instead.

What is the Purpose of Conditional Residency?

The reason USCIS does this is to investigate the legitimacy of the marriage. Some couples get married simply to gain lawful status in the United States. In order to identify this fraud, the U.S. places a conditional residence on the non-U.S. citizen in order to see if the parties are still married after two years. They will establish intent regarding the marriage and see if it is, in their words, a "sham." If it is deemed valid, the conditional residency can be removed.

The other type of conditional residency is an entrepreneurial residence. This one is designed for those who intend on beginning business ventures within the U.S. Entrepreneurs that wish to do so can apply for conditional residence, which gives these business owners time to set up and demonstrate their commitment to establishing a business that meets the qualification for an investor-based green card.Similar to spousal residency, USCIS wants to look at the validity of the business being set up in the United States. USCIS wants to make sure businesses set up are creating jobs in the American economy.

How to Remove Conditions on Permanent Residence

In order to become a non-conditional permanent resident of the United States, there are some tasks you must do. These tasks will help establish the case for your entry as a permanent resident without conditions. It is important to present a strong case to lift the conditions of your residency in order to ensure that the application is approved. Additionally, all forms and accompanying evidence must be sent within the 90-day period prior to a conditional residence expiring. The more evidence of the validity of your marriage or business, the more likely your application will be approved swiftly and without unnecessary problems or delays.

For Spouses

The first item you will want to take care of is filling out Form I-751. This form is also known as the Petition to Remove the Conditions of Residence. This form applies solely to those who are married to a United States citizen. By filling out this form, you will be giving USCIS the information they need to establish the bona fides of your marital relationship.If you or your spouse is applying to remove conditions for residency, be prepared to be interviewed. This is where the intent and legitimacy of the marriage will come into play. If the U.S. determines the marriage is invalid, there are few options left to remove the conditions. Therefore, it is important to be honest and prepare thoroughly for the interview.

For Entrepreneurs

If you are an entrepreneur, you will need to fill out Form I-829. The I-829 is also known as the Petition by Entrepreneur to Remove Conditions. As you could tell by the label, this form is specifically for business owners and no one else. It is to be filled out and submitted as your request for conditions to be removed.The United States will want to prove that your business dealings all occur within the country. They want to ensure that your enterprise will contribute to the American economy in a valuable way, including the creation of at least 10 jobs. It is also important to collect proof of your business when applying. USCIS will be looking at your operation closely, which is why it will be necessary to gather any and all relevant paperwork to build up your case properly.

What if you got divorced while you were a conditional resident?

We often get calls from clients who have gotten divorced during the 2 years of conditional residence, so their ex-spouse can no longer file the joint petition with them. Does this mean your case is over? Not at all. It just means you have to file a waiver of the joint filing requirement. Our office has had a lot of success in getting those waivers approved.

There are four grounds on which to file the waiver:

  • the marriage was entered in good faith, but ended in divorce
  • the married was entered in good faith, but ended on the death of the U.S. citizen spouse
  • the alien suffered domestic violence during the marriage
  • the alien would face extreme hardship if returned to the country of origin

Obviously each of these grounds could apply to you depending on the facts of your case, but by far the most common ground used is the first one. If you got divorced before lifting the conditions on your permanent residence, you simply have to show that the marriage was entered in good faith but did not work out. You would have to submit your divorce decree as well as the kind of evidence of good faith marriage you submitted when you filed your adjustment of status. A list of the evidence you should gather can be found here.

What if you are having marital problems?

What if it is time to file to lift the conditions and you are still married, but you are having serious problems in the marriage? Should you stay married just to have your spouse file the joint petition with you? Again, every case is different and you should always consult with a lawyer first.

But, USCIS will often suspect fraud if, for example, you are not living in the same residence as your spouse. It is often better in these cases to get divorced and file for the waiver. Our office handles divorce cases, so contact our family law attorney for a free divorce consultation if you think this might be something you want.

If you are a victim of domestic violence, you might also want to consider getting a protective order, both for your personal safety and to strengthen you waiver case. Our family law attorney can help with a protective order if that is somthing you need.

In the event that your waiver is not approved, you may also be eligible for other forms of relief to obtain permanent residency, such as VAWA Self-Petition or a U Visa. Contact our office for a free consultation for more information.

Why Use Salmon-Haas For Your Conditional Residence?

The attorneys at Salmon-Haas have helped hundreds of other people with their immigration needs. Together, the lawyers have been able to work towards getting clients in need the best results possible. Contact Salmon-Haas to learn more about become a conditional permanent resident.

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