A foreign national who receives a green card through marriage to a U.S. citizen becomes a conditional permanent resident of the United States. This is legal permanent residency, but the foreign spouse’s green card is valid for only two years. However, the status of legal permanent residency can last for many years even if the green card expires. The validity of the green card is extended when the foreign national files a Petition To Remove Conditions (Form I-751).
Both spouses file the Form I-751 with Immigration during the 90 days before the green card expires. Once the petition is filed, the foreign national remains a conditional resident until a final decision is made on the application. After filing the joint petition, the couple may need to appear together at another Immigration interview. If the couple cannot appear at the interview or file the petition together because of abuse or divorce, the foreign national may qualify for a waiver that would either excuse the presence of the U.S. citizen at the interview or allow her to file her own petition.
A waiver for the spouse’s presence at the interview can be filed after a joint I-751 is submitted. The waiver gives the foreign national an opportunity to prove that the marriage was entered into in good faith, even though it eventually failed. The waiver was created by lawmakers who realized that marriages can break down in less than two years.
It is especially important that a foreign national in this position seek the assistance of a qualified immigration attorney to assist in proving the valid marriage. This is because a negative ruling will automatically result in termination of status, and a bar against future immigration petitions. Down the road, it will probably also result in deportation.
A conditional resident maintains legal status as a resident until a final decision is made on the pending Form I-751. If the Form I-751 is approved by Immigration, the conditions on permanent residence are removed and a permanent green card is granted. If it is not approved, the foreign national will receive a Notice To Appear before an Immigration Judge who will make the final decision regarding the petition.
If the Judge is reviewing the Form I-751 after Immigration has denied it, the foreign national still maintains their legal permanent resident status until the Immigration Judge rules on the case. Because it is the foreign national’s burden to explain to the Immigration Judge why she should not be deported, the assistance of an experienced Immigration Attorney is extremely important.