Heather L. Poole, PC

(Toll Free) 1.877.HUMAN.RTS (486-2678)
Experts in Family-Based Immigration & Citizenship

Conditional Green Cards

If you have been married less than two years when your noncitizen spouse is granted lawful permanent resident status, your spouse will receive permanent resident status on a conditional basis.

What this means is that the noncitizen spouse's green card will only be valid for 2 years, not 10 years. To convert the conditional (2 year) green card into a 10 year green card, the U.S. citizen or legal permanent resident sponsoring spouse and the conditional green card-holding spouse must together to petition to have the condition removed, or else the green card will expire and lawful permanent residency status terminated.

This petition must be filed within the 3 month period before the green card expires.

What is my spouse will not cooperate or help me file the have the condition taken off of my green card?

The point of a condition being placed on lawful permanent residency status is the belief that many marriages are entered into just for the purpose of obtaining a green card, not for love or any other reason. The only way Congress could figure out how to detect potentially fraudulent marriages was to put a two year limit on green cards issued to spouses in marriages that were less than two years old.

This strategy also ensures that the marriages are more likely to be real, i.e., entered into for love or other non-immigration purpose, because the couple have to still prove to CIS that they are still together and living as husband and wife two years after the noncitizen first receives his or her green card, by filing more paperwork with CIS with supporting documentation of the marriage, and potentially interview again in front of a CIS officer, all to have the conditional nature of the green card removed.

If a couple separates or divorces at any time after the green card is first issued, it is unlikely that the originally sponsoring U.S. citizen or LPR spouse will cooperate in helping the noncitizen spouse release the condition on the green card for a number of reasons. If this happens, the noncitizen may be able to apply to have the condition removed from his or her own green card by applying for a waiver. The waiver allows the noncitizen to apply to remove the condition on his or her green card without the assistance of their spouse. There are currently three different ways or grounds to apply for a waiver:

(1) bona fide marriage ground (if your divorce is final at the time of filing);

(2) extreme hardship (to the alien if deported to their original country); or

(3) extreme cruelty (proving that the noncitizen alien received physical, emotional, or financial abuse from their spouse)

CIS allows a noncitizen to apply for any number of these grounds on the same petition. Waivers are generally more difficult to get approved and universally require an interview of the noncitizen spouse for the case to be approved.

What happens if I don't file the joint petition or the waiver in time (within 90 days of my green card's expiration)?

Your green card will be lost if you fail to file within this period, unless you file a waiver petition. A waiver may be filed even after expiration of a green card and even before the 90 day filing period. Once a CIS receipt notice is received from CIS, you will have proof that your green card is still valid for another year or until the case is decided, whichever comes first. If your case is still not decided within a year, your green card will be extended for another year and will be extended on an annual basis until the case is decided.

Will there be another interview with a CIS officer to decide the case?

If you file a waiver, current policy is that an interview will be required. If you file a joint petition and depending on the evidence submitted, an interview may not be required.

In the event of an interview, we will not only prepare our clients a few weeks before the interview with what documents will be necessary, but also with what kind of questions could be asked and generally, what to expect at the interview. This is also the key time to discuss any potential issues that either the Attorney or the couple or waiver filer wishes to discuss before the interview. Heather goes with the couple or the individual spouse (if filing a waiver) and sits with them at the actual interview to not only lend support to the application but to answer any legal issues that come up, to provide clarification to the officer and clients where needed, and to lend credibility to the marriage, itself - i.e., that no attorney is going to risk their bar license for a sham marriage.

Will I still be able to apply for citizenship if my joint petition or waiver to remove the condition on my green card is still not decided when I become eligible to apply for U.S. citizenship?

Yes. If you received your green card through marriage and you are still living with your husband or wife 3 years after your green card is initially issued, you will be eligible to apply for U.S. citizenship. Even when your green card is conditional because of the short duration of your marriage, you do not have to wait until the conditional petition is decided until you file for citizenship. Actually filing for U.S. citizenship will speed up the process of CIS deciding the conditional residency issue, as conditional residency will no longer be an issue if a person has already received U.S. citizenship. For more information, click here.

If you are applying for a waiver because you are divorced or for any other reason that you are not living with your spouse anymore, then you will be eligible for citizenship after 5 years in lawful permanent residency status. Usually, conditional residency waivers do not take more than 2 years to decide and thus, it is unlikely that it will interfere at all with your citizenship plans or that you will encounter this issue. However, the same general principles apply if for some reason the decision-making on waivers dramatically slows down over the coming years.

Will I be able to travel abroad while the joint petition or waiver is pending with CIS, even if my hard copy green card is expired?

To be sure that you will be allowed re-entry into the U.S. upon departure after your green card expires, you should have proof of your continued lawful permanent residency stamped in your passport by CIS after you receive proof of filing of the joint petition or waiver. This temporary stamp will be the evidence necessary for a port of entry CIS official to conclude that you are still a lawful permanent resident and should be allowed re-entry into the U.S.

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The above information is general in nature and is not intended to be considered or relied upon as legal advice. You should always consult an attorney to determine if what immigration options are available to you and to determine how any recent changes in the law could affect your situation.