An alien who receives a green card through marriage that is less than two years is granted a conditional residence status. The conditional residence status expires two years after it is granted. The petition to remove conditions on residence is made on Form I-751.
It is imperative that the petition is filed as failure to do so will result in the automatic termination of the conditional LPR status of the alien spouse. Once terminated, the case may be processed for issuance of a notice to appear in removal proceedings
If the petition is jointly-filed by the spouses, it must be filed within 90 days before the conditional residence status expires. The USCIS will process a late petition only if the delay is caused by extraordinary circumstances beyond the applicant’s control. If the marriage has been terminated through a final divorce or annulment, the alien spouse may file the petition with a request for waiver of joint filing. This is also made on Form I-751 and may be filed any time after the conditional residence status is granted but before removal from the U.S.
Evidence showing a bona fide marriage and continued marital union must be submitted to establish eligibility. The same is true for the alien spouse requesting a waiver of joint filing. He must submit evidence proving that the marriage was entered into in good faith and was not made for the purpose of obtaining residency.
Recently, the USCIS reviews I-751 petitions with more scrutiny. Evidence which the USCIS used to consider adequate is no longer sufficient to meet the standard of proof. More Requests for Evidence (RFEs) have been issued requiring more documents to prove good faith marriage and continued marital union.
Evidence include proof of common residence and shared responsibility, such as lease agreement naming both spouses as tenants, deeds and mortgages in both names; combined financial resources and joint responsibility for liabilities, such as joint checking and savings account statements, insurance policies showing the other spouse as beneficiary, joint federal and state tax returns and joint utility bills.
Note that proof of the existence of a joint account is no longer sufficient as USCIS requires account statements showing deposits or withdrawals for the period of marriage. Also, joint tax forms are no longer adequate as the USCIS requires proof of filing with the Internal Revenue Service (IRS).
Affidavits of persons who have personal knowledge of the marital relationship may also be submitted. Documentation of family vacations and photographs may also be included. Although these are not concrete evidence of bona fide marriage, the USCIS considers these helpful in adjudicating I-751 petitions.
If the director of the regional service finds the evidence sufficient, he may waive the interview and approve the petition. If not, the petition will be forwarded to a district director having jurisdiction and will assign an immigration officer who will conduct the interview.
Where the evidence is insufficient, it will deny the I-751 petition and the conditional residence status is terminated as of the date of the decision. There is no appeal from the decision. Proceedings for removal will be initiated and the alien may seek review of the decision in removal proceedings.