CONDITIONS ON RESIDENT STATUS
§§ 216A the Immigration
and Nationality Act of 1952 ("Act"), Pub. L. No.
82-414, 66 Stat. 163,
8 U.S.C. § 1186b.
(c) 1999 VIKRAM BADRINATH, P.C. All rights reserved.
"Conditional" permanent residence refers to the status granted to the spouse or child of a United States citizen or lawful permanent resident or alien entrepreneur who applied for lawful permanent residence on the basis of a marriage that was less than two (2) years old at the time the application for lawful permanent residence is approved. The spouse remains a "conditional" permanent resident for two (2) years, commencing at the time conditional permanent residence is granted. At the expiration of the two (2) year period, a conditional lawful permanent resident alien's status will automatically expire unless a formal petition is filed to have the "conditions" removed. A conditional permanent resident is authorized to engage in the same activities as a lawful permanent resident, but must file for "Removal of Conditional Residence" on Form I-751 within the 90 day period prior to the end of the two year period. The purpose behind placing conditions on an alien's permanent residence is to ensure that the marriage was not fraudulent and/or obtained for the purpose of evading the immigration laws or obtaining an immigration benefit under the Act. Thus, both petitioner and beneficiary (spouses) must demonstrate that they are still lawfully married for a period of two (2) years after the marriage. If the marriage has dissolved within the two (2) year intervening period between the approval and the necessary filing for removal of the "conditions," the U.S. INS may cancel the alien's lawful permanent resident status. This procedure is designed to protect U.S. citizens from fraudulent marriages entered into for the sole purpose of obtaining an immigration related benefit. However, in certain cases, for good cause, there exists a waiver of the joint filing requirement.
An alien granted conditional residence in the United States on the basis of his or her marriage to a United States citizen or permanent resident is eligible to have the conditions of his residence removed two (2) years after the date the conditional permanent residence was granted. The alien must demonstrate that the marriage was valid and not a sham. If the marriage has not lasted for the duration of the two (2) year period, the alien may still seek removal of his conditional resident status if he can demonstrate that the marriage was entered into in good faith and not for the purpose of evading the immigration laws, if the beneficiary spouse or child was battered or subject to extreme cruelty (mental or physical), or if the deportation/removal of the alien would cause extreme hardship to a qualifying family member.
In order to apply for the removal of the conditions placed upon lawful permanent resident status, the alien must file Form I-751 with the U.S. INS Regional Service Center having jurisdiction over the place of his residence during the ninety (90) day period immediately preceeding the second anniversary of the approval date for onditional permanent resident status.
The filing of this Petition automatically grants a six (6) month extension of conditional permanent resident status; extensions of employment authorization and advance parole are also automatic under this section of law.
If a Petition is not filed within the time allowed (e.g., the three (3) month window), the conditional resident's status will be automatically terminated, possibly resulting in formal proceedings to remove the alien from the United States.
For more information about removing the conditions placed upon a resident's status, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.