Immigrants to the United States who obtained conditional permanent resident status through marriage can use an I-751 petition to remove conditions on residence.
To help you better understand how to remove conditions with an I-751 waiver, our California immigration lawyers discuss, below:
- 1. Who can use Form I-751?
- 2. Do I need to file jointly with my spouse?
- 3. Where to file an I-751 petition
- 4. When should I file for an I-751 waiver?
- 5. What happens if I don’t file an I-751 petition?
- 6. Does the application have to be in English?
- 7. What documents must be included with my application?
- 8. How much does an I-751 petition cost?
- 9. What are biometrics?
Conditional residents who obtained their status through marriage can use Form I-751 to request that U.S. Citizenship and Immigration Services (USCIS) remove the conditions on their residence.
It can also be used to waive conditions for dependent children who acquired conditional resident status on the same day as their immigrant parent or within 90 days thereafter.
Dependent children who acquired their status later (or through a conditional resident parent who is deceased) must each file Form I-751 separately.
An immigrant who is still married must file Form I-751 jointly with his or her spouse.
An immigrant may file Form I-751 without a spouse if:
- The immigrant entered the marriage in good faith, but his or her spouse subsequently died;
- The immigrant entered the marriage in good faith, but the marriage was later terminated by divorce or annulment;
- The immigrant entered the marriage in good faith, but the immigrant was battered or subject to extreme cruelty by the petitioning spouse;
- The applicant’s conditional resident parent entered the marriage in good faith, but the applicant has been battered or subject to extreme cruelty by either parent; or
- Termination of the applicant’s status and removal from the United States would result in “extreme hardship.”
Applicants must file Form I-751 at the USCIS California Service Center or the USCIS Vermont Service Center, depending on where they live.
You can check the USCIS website for Form I-751 (linked to at the top of this article) to verify the correct address for your application.
Applicants who are filing the I-751 petition jointly with their spouse must file during the 90-day period immediately before their conditional residence expires.
An applicant who is filing without a spouse (as set forth above) may file an I-751 petition at any time after being granted conditional resident status and before removal (deportation) from the United States.
An immigrant who does not file an I-751 petition will automatically lose permanent resident status two years from the date on which he or she was granted conditional status. The immigrant will then become removable (deportable) from the United States.
However, if failure to file the petition was due to extraordinary circumstances beyond the immigrant’s control and the length of the delay was reasonable, the immigrant may file the petition late with a written explanation and a request that USCIS excuse the late filing.
The I-751 petition must either be in English or accompanied by a full English translation.
The translator, if any, must sign a certification that the English language translation is complete and accurate, and that he or she is competent to translate from the foreign language into English.
The petitioner will need to submit the following documents to USCIS along with the Form I-751:
- A copy of the alien’s permanent resident card (green card) or alien registration card or, if the immigrant is overseas, two passport-sized photos;
- Proof of a good faith marriage;
- Evidence of death, divorce, abuse or extreme hardship (if applicable); and
- Criminal history (if any).
Let’s take a closer look at each of these requirements.
The alien and any dependent children who are applying must submit copies of both the front and back sides of the card.
However, aliens who reside overseas pursuant to military or government orders, and their dependents who also reside overseas, have different requirements.
Overseas aliens must two 2” x 2” passport-style photos for each petitioner and dependent, regardless of age. The photos must:
- Be in color with a white or off-white background,
- Be printed on thin paper with a glossy finish,
- Be unmounted and not retouched,
- Have a full-face frontal view,
- Be of the applicant with a bare head (unless the applicant is wearing headwear as required by a religious denomination of which the alien is a member; and
- Have the alien’s name and Alien Registration Number (A-Number) (if any) lightly printed in pencil or felt pen on the back of the photo.
Overseas aliens and any dependents ages 14 to 79 years must also submit two completed Form FD-258 standard fingerprint cards each, with their A-Numbers and written on each one. The fingerprint cards must be prepared by a U.S. Embassy or U.S. Consulate, USCIS office, or U.S. military installation.
All I-751 applications must include copies of documents indicating that the marriage upon which conditional status was granted was entered into:
- In “good faith,” and
- Not for the purpose of circumventing immigration laws.
Documents that can help establish this include (but are not limited to):
- Birth certificates of children born during the marriage, if any;
- Lease or mortgage contracts showing joint occupancy and/or ownership of a home;
- Financial records showing joint ownership of assets and responsibility for liabilities, such as:
- joint savings and checking accounts with transaction history,
- complete joint Federal and State tax returns,
- insurance policies that show the other spouse as the beneficiary,
- joint utility bills, or
- joint installment or other loans,
- copies of military Leave and Earnings Statements showing receipt of Basic Allowance for Quarters (BAQ) with family members and/or Form DD-1172 for military family member identification cards (if applicable); and
- Affidavits sworn to or affirmed by at least two people who have known both spouses since the conditional residence was granted and have personal knowledge of the marriage and relationship.
Each affidavit should contain the following information about the person signing it:
- His or her full name and address;
- Date and place of birth;
- Relationship to the applicant and applicant’s spouse; and
- Details explaining how the person acquired his or her knowledge.
If an applicant is filing as an individual, the petition must also be accompanied by, as applicable:
- A copy of the death certificate,
- A copy of the final divorce decree or other document terminating or annulling the marriage, or
- Evidence of abuse, such as:
- Copies of a court protective order,
- Reports or official records issued by police, courts, medical personnel, school officials, clergy, social workers, or other social service agency personnel,
- Evidence of the abuse (such as photographs and/or medical records),
- Evidence (such as photographs or affidavits) showing that the applicant sought safe haven in a shelter for the abused or similar refuge, or
- If the marriage was terminated by divorce on grounds of physical abuse or extreme cruelty, a copy of the divorce decree.
If the applicant is filing for a waiver of the joint filing requirement due to “extreme hardship,” the applicant must submit evidence that removal would result in hardship significantly greater than the hardship encountered by other foreign nationals who are removed from this country after extended stays.
All evidence of individual filing eligibility must relate only to those factors that arose during the two-year period for which the applicant was admitted as a conditional resident.
I-751 applications must contain a complete account of any alleged criminal activity.
If the alien has ever been arrested or detained by law enforcement for any reason — either in the United States or another country — but no charges were filed, the applicant must provide either:
- An original (not a copy) of an official statement by the arresting agency confirming that no charges were filed, or
- A court order showing that no charges were filed.
An alien does not need to submit documentation for traffic fines and incidents that did not result in an arrest as long as:
- The traffic incident was not alcohol- or drug-related, and
- The only penalty was a fine of less than $500 and/or points on the alien’s driver’s license.
An applicant who has ever been arrested or detained by law enforcement for any reason — either in the U.S. or abroad – and had charges filed (with or without an arrest) must submit an original or court-certified copy of the complete arrest/court record and/or disposition for each incident.
If the immigrant was ever convicted or placed in an alternative sentencing program or rehabilitative program (such as drug treatment or community service), the applicant must submit:
- An original or court-certified copy of the sentencing record for each incident along with the following evidence that the immigrant completed his or her sentence:
- An original or certified copy of the immigrant’s probation or parole record; or
- Evidence that the immigrant completed an alternative sentencing program, or rehabilitative program;
- An original or court-certified copy of the court order vacating, setting aside, sealing, expunging, or otherwise removing the arrest or conviction; or
- If no record is available, an original statement from the court that no record of the arrest or conviction exists.
The fee to file a Form I-751 is $595. There may also be an $85 biometric service fee for a total of $680.
Conditional residents will need to include the biometric services fee in the payment with their petition.
U.S. citizens or lawful permanent residents who are the spouse of the person seeking to waive the conditions do not need to include the biometric services fee with the petition. U.S. Citizenship and Immigration Services (USCIS) will notify such spouses later if they need a biometrics appointment.
Biometrics are checks to verify an applicant’s identity. They can include (without limitation):
- An in-person interview,
- Signature, and
- Background and security checks, including a Federal Bureau of Investigation (FBI) background check for criminal records.
USCIS may require that an applicant appears in person for biometrics before the agency makes a decision on the petition.
After USCIS receives a petition and ensures it is complete, they will inform the applicant, in writing, and provide a date and time for a biometric services appointment at the nearest USCIS Application Support Center (ASC).
Applicants who are overseas will be instructed to contact a U.S. Embassy, U.S. Consulate, or USCIS office outside the United States to set up an appointment.
Failure to attend the biometric services appointment may result in a denial of the petition.
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