Removal of Conditional Residency Petition (I-751)

Typically when  an individual who marries a United States citizen or lawful permanent resident (LPR), they are granted conditional resident status — provided the marriage is not more than two years old when immigrant is admitted to the United States (INA Section 216). This period is known as “conditional residency.” Conditional residency was put in place due to a concern of marriage fraud. Consequently, its purpose is to deter those who seek immigration benefits by fraudulent means. Conditional residency also applies to step-children under Section 216.

Those who are granted conditional residency must petition USCIS to have those conditions removed by the two-year anniversary of obtaining the conditional residency status (I-751 filing should be done within 90 days before the second anniversary of the grant of conditional residency). Most noteworthy, the petition to remove conditional residency (I-751) must typically be filed jointly — by both spouses. However, there are certain instances when the petition cannot be filed jointly.

What if I can’t file I-751 jointly because I am no longer married to the person who petitioned for me?

Since the I-751 petition to removal conditional residency must be filed jointly, a problem arises when an individual is no longer married to the person who filed their immigrant petition. Fortunately, the INA provides for a waiver in such cases under section 216(c)(4). A waiver may be granted if the marriage is terminated and in any of the following situations:

  1. A showing of “extreme hardship” to the conditional resident, dependent child, or subsequent spouse;
  2. Termination of the marriage with a showing that the terminated marriage was entered into in good-faith;
  3. Battered spouse or children situations; or
  4. The death of the petitioning spouse

What happens if my I-751 petition is denied?

If USCIS requires additional information regarding your petition, it must provide you with notice and an opportunity to rebut (8. C.F.R 216.4(c)(4)). Moreover, if your petition is denied, you can file a motion to reopen and/or reconsider. Another potential outcome is that USCIS may initiate removal proceedings against you. In removal proceedings, the burden of proof is on the government — this means that they must prove that you are removable under the INA by a preponderance of the evidence.

How Randhawa Hundal LLP Can Help

Call Randhawa Hundal LLP today to speak with an attorney regarding your I-751 petition.  We offer assistance with family-based and employment-based immigration matters in addition to a variety of other services. We offer competitive rates and a quick turnaround time. We have great reviews and pride ourselves on providing our clients with the highest quality of service.