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Conditional Permanent Resident Status & Removing Conditions

Conditional Permanent Resident Status
Conditional permanent resident status is governed by certain provisions of the Immigration and Nationality Act (INA). The Act defines two kinds of conditional residence:
  • Conditional residence based on family relationship granted to an alien seeking admission to the United States with an immigrant visa as the spouse, son, or daughter of a United States citizen or lawful permanent resident. An alien granted conditional permanent residence on family basis is admitted conditionally for a period of two years. At the time of admission, the alien is notified that the alien and the petitioning spouse must file a Petition to Remove the Conditional Basis of Alien's Permanent Residence (Form I-751), within the 90-day period immediately preceding the second anniversary of the alien's admission for permanent residence.

  • Conditional residence based on entrepreneurship granted to an EB-5 investor seeking admission to the United States with an immigrant visa as an alien entrepreneur, or the spouse or unmarried minor child of an alien entrepreneur. An alien granted conditional residence on entrepreneurship basis is admitted conditionally for a period of two years. At the time of admission, the alien is notified that the principal alien must file a Petition by Entrepreneur to Remove Conditions (Form I-829), within the 90-day period immediately preceding the second anniversary of the alien's admission for permanent residence.
Filing instructions vary depending on the avenue used to obtain conditional residence and the petitioner's circumstances. Numerous documents in support of the petition have to be submitted to the immigration authorities for their review and approval. Legal assistance in preparing the application package can save the applicant money and headaches by preventing potential complications and delays that may be expensive to resolve.

Form and Content of Petition To Remove Conditions (Form I-751)
Form I-751 must be signed by the alien and by the alien's spouse, and accompanied by the appropriate fee and the evidence that the purpose of the marriage was not to evade the immigration laws of the United States, such as:
  1. documentation showing joint ownership of property;

  2. a lease showing joint tenancy of a common residence;

  3. documentation showing commingling (combining) of financial resources;

  4. birth certificates of children born to the marriage;

  5. affidavits of third parties having knowledge of the bona fides of the marital relationship; or other documentation establishing that the marriage was not entered into with the purpose of evading the immigration laws of the United States.
Dependent children of a conditional permanent resident should be included in the joint petition filed by the parent and the parent's petitioning spouse.

Form I-751 and any supporting documentation must be filed with the United States Citizenship and Immigration Services (USCIS).

A petition to remove the conditional basis of permanent resident status may be filed regardless of the alien's physical presence in the United States. However, in order to meet the interview requirements (explained below), the alien must be present in the United States at the time of the interview, with the spouse and dependent children. Also, if the documentation in support of the petition includes affidavits of third parties, the petitioner must arrange for the affiants to be present at the interview, at no expense to the government.

Failure to properly file form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis will result in automatic termination of the alien's permanent resident status, and the initiation of proceedings to remove the alien from the United States.

Interview Requirements (Form I-751)
In certain circumstances, the alien and the petitioning spouse, if not deceased, must appear for a personal interview before an Immigration and Naturalization Service (INS) officer or employee with respect to the petition to remove the conditional basis of permanent resident status. The Regional Service Center Director reviews the form I-751 to determine whether to waive the interview. If there is no suspicion that the marriage was entered into with the purpose of evading the immigration laws, the Director may waive the interview and approve the petition. Unless waived, the interview is conducted within 90 days after the petition is filed. An interview may be rescheduled or waived, as appropriate, if the alien submits a written request and the Director determines that there is good cause for granting the request. If the interview is rescheduled at the petitioners' request, the INS is not required to conduct the interview within the 90-day period.

Waivers of Petition and Interview Requirements (Form I-751)
  • If the alien establishes to the District Director's satisfaction, in writing, that there was good cause for the failure to file form I-751 within the required time period, the form may be filed after the expiration of the 90-day period. A claim of good cause must be supported by proof that the conditional resident alien was not at fault in failing to meet the filing requirement, and that removal from the United States would result in extreme hardship.

  • If a joint petition to terminate the conditional status of permanent residence cannot be filed due to the termination of the qualifying marriage through annulment, divorce, or the death of the petitioning spouse, or due to the petitioning spouse's refusal to join in the filing of the petition, the conditional permanent resident may apply for a waiver of the requirement to file the joint petition. If the waiver is granted, the petitioner may apply individually.

  • The petition and interview requirements may be waived, in the Attorney General's discretion, for an alien who fails to meet the petition and interview requirements if the alien demonstrates that the qualifying marriage was entered into in good faith by the alien, but the said marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the petition and interview requirements. To determine whether an alien entered into a qualifying marriage in good faith, the Regional Service Center Director considers evidence of commitment by both parties to the marital relationship, which may include:
    1. documentation demonstrating the degree to which the parties' financial assets and liabilities were combined;
    2. documentation concerning the length of cohabitation after the marriage, and after the alien obtained permanent residence;
    3. birth certificates of children born to the marriage; or other evidence deemed pertinent by the Director.

  • The petition and interview requirements may also be waived if an alien spouse or child demonstrates that the qualifying marriage was entered into in good faith by the alien spouse, but during the marriage the alien spouse or child was battered by, or was subjected to extreme cruelty perpetrated by, his/her spouse or parent who is a United States citizen or permanent resident, and the alien was not at fault in failing to meet the petition and interview requirements. Battery or extreme cruelty includes, but is not limited to, being the victim of any act or threat of violence, including any forceful detention, resulting or threatening to result in physical or mental injury, psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution.
Form and Content of Petition by Entrepreneur to Remove Conditions (Form I-829)
The petition for removal of conditions (Form I-829) must be accompanied by the appropriate fee and the following documentation:
  1. documents demonstrating that a commercial enterprise was established by the alien, such as Federal income tax returns;

  2. documents concerning the alien's investment of the requisite capital, such as an audited financial statement;

  3. documents establishing that the alien met the capital investment requirement of the statute and continuously maintained his/her capital investment over the two years of conditional residence, such as bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements;

  4. documents demonstrating that the alien created or can be expected to create within a reasonable time 10 full-time jobs for qualifying employees, such as payroll records, relevant tax documents, and Forms I-9.
The entrepreneur's spouse and dependent children should be included in the petition to remove conditions.

Form I-829 and any supporting documentation must be filed with the United States Citizenship and Immigration Services (USCIS).

A petition to remove the conditional basis of permanent resident status may be filed regardless of the alien's physical presence in the United States. However, in order to meet the interview requirements (explained below), the alien must be present in the United States at the time of the interview, with the spouse and dependent children.

Failure to properly file Form I-829 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis will result in the automatic termination of the alien's permanent resident status and the initiation of deportation proceedings.

Interview Requirements (Form I-829)
The Service Center Director reviews the Form I-829 and the supporting documents to determine whether to waive the interview. If satisfied that (1) the alien has established a commercial enterprise; (2) the alien invested or was actively in the process of investing the requisite capital; (3) the alien met the capital investment requirement of the statute and continuously maintained his/her capital investment over the two years of conditional residence; and (4) the alien created or can be expected to create within a reasonable time 10 full-time jobs for qualifying employees, the Service Center Director may waive the interview and approve the petition. Unless waived, the interview is conducted within 90 days after the petition is filed.

If derogatory information related to any of the above issues comes to light or it becomes known to the government that the entrepreneur obtained his/her investment funds through illegal means (e.g., illegal drug sale), the Director offers the alien entrepreneur the opportunity of rebuttal. If no unresolved derogatory information remains, the petition is approved and the conditional basis of the alien's permanent resident status is removed.


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