When a marriage is less than two years old prior to filing an I-485 petition, USCIS is only able to grant permanent residence to the alien spouse for a two-year conditional period.

After receiving this conditional Green Card, the alien must prepare to file for the Removal of Conditions. Within 90 days of the expiration of the two-year residence (i.e., 21 months after residence is granted), the alien must file an I-751 petition. The goal of the I-751 petition is to prove that the marriage is still intact or, if not, that it was bona fide at the time of marriage. USCIS will adjudicate this petition, either granting a ten-year renewable Green Card or allowing the alien’s residency to terminate at the end of the two-year period.

If a conditional resident fails to file this I-751 prior to the expiration date of the two-year residency, that person no longer has permission to live or work in the United States. If such an alien leaves the country after this two-year period, s/he will be denied re-entry to the United States.

Further, an alien on an expired conditional residence will be given notice to depart the United States. Failure to take this voluntary departure will result in referral to Immigration Court for removal proceedings. This can cause irreparable harm if the person is no longer living with the U.S. citizen spouse through whom the alien gained conditional residency. Removal proceedings would be harmful and disruptive even if the couple were still together, since they would have to re-file an I-485 petition and pay filing fees once again.

NOTE: The above does not mean that aliens on conditional residence are “stuck” with a spouse if the relationship has fallen apart.

If a couple is having marital difficulties, the conditional-resident alien should contact an immigration lawyer immediately to determine what options are available to apply for the full, ten-year residence before waiting for all 21 months of marriage to elapse.

Case Study #1:

A 25 year old Portuguese man arrived in the U.S. as a tourist in 2002 and married a U.S. citizen in 2007. Our firm was hired to Process his adjustment of status. He was approved for his conditional permanent residence in 2008 and his 10 year residence in 2010.

In our office, when we help an alien gain two-year residence we then mark our calendars with the passing of 21 months and take steps to ensure that our clients can gain their full Green Cards as promptly and with as few complications as possible. One important step is to maintain a current address on file for the alien, both in our office and with USCIS. If USCIS is not given address updates, and the alien misses the two-year filing deadline, s/he could miss notification of an Immigration Court proceeding and be ordered deported from the United States in absentia.

To learn more about I-751 petitions and how we work to ensure our clients do not miss important deadlines, please contact our Nevada immigration lawyer today.