For those who have conditional residency (a two year green card), Form 1-751 must be filed within the ninety-day period preceding the expiration date of the conditional residency status. This is an important date to keep in mind. If the application is not filed in time, the legal status instantly ends and unlawful presence starts.
As part of the Form 1-751 filing, the couple needs to submit papers for example, tax returns, children’s birth certificates (if any), and other proof showing a continuing, authentic marriage (which includes many of the papers described above). Thus, it is encouraged that the couple start saving records showing a bona fide marriage leading up to this process.
While failure to live together and/or be married at the point of filing the Form 1-751 is not fatal to the removal of conditional residency, it makes it more difficult. If the parties are no longer married or if the petitioner spouse refuses to sign Form 1-751, there are limited options allowing the foreign spouse to still successfully petition for the removal of conditional residence and achieve permanent LPR status.
- the petitioning spouse is deceased;.
- the marriage was entered into in good faith, but the marriage was terminated through divorce (mere separation is not enough and the divorce proceeding has to be complete, which is often difficult given the length of time required for a divorce proceeding) or a completed annulment;.
- the foreign beneficiary spouse was battered or subject to extreme mental cruelty; or.
- the termination of conditional residency and removal from the United States would result in extreme hardship to the foreign beneficiary spouse, a dependent child, or even a subsequent spouse.
If a foreign beneficiary spouse needs to rely on any of these options, it is highly recommended that one seek the assistance of qualified immigration counsel at once.
Once the 1-751 is filed, a receipt is issued showing that conditional LPR status is extended for a period of one year for employment and travel. If the USCIS has not adjudicated the 1-751 filing within that year, an appointment can be made at the local USCIS office to request an 1-551 stamp, which would facilitate a longer period of status allowing employment and travel until the 1-751 is adjudicated.