A crucial aspect often overlooked in marriage-based immigration is the distinction between permanent residency and conditional permanent residency. Conditional residency is granted when the immigrant spouse has been married to their petitioning spouse (U.S. citizen or permanent resident) for less than two years at the time they acquire permanent resident status—either when the I-485 application is approved or when the immigrant enters the U.S. with an immigrant visa. In this case, the immigrant spouse receives a two-year green card. Generally, within 90 days before the expiration of this green card, both spouses must file for the removal of conditions to obtain the 10-year green card.
In contrast, permanent resident status without conditions results in a 10-year green card when permanent residency is granted after the couple has been married for at least two years.
Conditional Permanent Residency
Receiving conditional residency represents just a halfway point in the immigration process. Two years later, both spouses must jointly file USCIS Form I-751 to request the removal of conditions. True permanent residency is achieved only after the I-751 petition is approved and the conditions are lifted.
I-751 Waivers: divorce, abuse, extreme hardship, death of spouse
While both spouses are generally required to file the I-751 petition together, complications can arise that hinder joint filing. Fortunately, the law provides for waivers in cases where joint filing is not possible due to the death of the petitioning spouse, divorce, abuse, or extreme hardship faced by the foreign national spouse. It is important to note that I-751 cases, whether filed jointly or not, can become quite complex; for instance, a joint filing may later need to be converted to a waiver if joint filing is no longer feasible in light of any of the scenarios mentions above.
Permanent Resident Status (No Conditions)
The resulting green card is a 10-year green card. If permanent resident status is maintained, this card can be renewed easily after ten years, although most individuals will likely qualify for U.S. citizenship by that time.
Consider Each Option Before Applying
Given the advantages of a green card without conditions over a conditional resident card, it may be beneficial to wait after marriage before applying for a marriage-based green card, depending on government processing times. This option is particularly appealing for foreign national spouses already in the U.S. with lawful status that permits work and travel (such as H-1B, L-1, P-1, O-1 visas). However, individual preferences should always be considered. In some cases, it makes sense to delay the green card application to navigate the process only once rather than twice. This decision should be made in consultation with an experienced immigration attorney.
During the waiting period, spouses can gather substantial evidence of their marriage, such as jointly filed taxes, shared financial accounts, and joint travel experiences. This accumulated evidence strengthens their green card application, making it easier for USCIS or the consulate officer to arrive at a favorable decision.
Navigate the I-751 Process with an Experienced Immigration Lawyer
The importance of consulting an experienced immigration lawyer for I-751 cases cannot be overstated. Call our office at 702-243-9444 or schedule your consultation using the link below.
