This month I will discuss the issue of conditional permanent residence status. The term “conditional permanent residence” can be confusing as the term refers to a permanent immigration status that is still conditional, i.e., temporary, on certain legal conditions. Most recipients of “conditional permanent residence” are often confused as to the specific actions that must be taken to remove the condition from their permanent residence. In addition, most applicants are weary of filing their application to remove the condition on their permanent resident status if they are separated, divorced or experiencing marital problems.
First, conditional permanent residence status is given to individuals who have acquired permanent residence through their spouse but they have not yet reached their two-year wedding anniversary at the time of their interview. As such this immigration status is sometimes referred to as the green card for newly-weds. Conditional permanent residence is also given to children of the alien beneficiary as derivative beneficiaries. To that end, if an individual is applying for permanent residence through a spouse and the couple has not reached the two-year wedding anniversary the individual and his/her children will both be given conditional permanent residence. The reason being is that the child(ren)’s petition is dependent on the parent, i.e., the alien beneficiary’s permanent residence petition. Conditional permanent residence is conditional because the recipient’s permanent resident card is only valid for two years. The two-year condition can only be removed if the beneficiary submits the application to remove the condition on his or her permanent residence card before the alien resident card expires and the application is approved.
Second, the beneficiary is required to submit the application to remove the condition before the alien resident card expires. If the beneficiary is still married to his or her spouse then both parties must sign and submit the petition. If the beneficiary is separated or divorced then the beneficiary can submit the petition without the spouse. In all instances of filing, the beneficiary must submit new/additional documentation to show the validity of the marriage. However, the beneficiary will have a higher burden to demonstrate the validity of the marriage if he or she is separated or divorced from his/her spouse.
Third, most applicants are concerned about their status while their application to remove the condition is pending and their alien resident card has expired. It is important to note that a beneficiary’s permanent residence status does not terminate simply because his or her alien resident card has expired. The two-year conditional permanent residence is automatically extended for one year provided the beneficiary has filed the application to remove the condition before the expiration of the card. In some instances Immigration will accept and process applications to remove the condition if the application is filed after the beneficiary’s alien resident card has expired. During the time that the beneficiary’s application to remove condition is pending the beneficiary is still able to travel, work, and renew his or her driver’s license.
Finally, applicants who are separated or divorced sometimes believe that they are in a safer position if they do not alert immigration to the change in their marital status. This is a grave mistake. If a beneficiary fails to submit his or her application to remove condition in a timely fashion Immigration will automatically terminate his or her permanent residence status. Immigration then has the option of placing the beneficiary in deportation/removal proceedings. Immigration will approve a beneficiary’s application to remove condition so long as the beneficiary submits sufficient evidence that convinces Immigration that the beneficiary’s marriage was sincere as opposed to a sham/business marriage. Therefore, beneficiaries who are separated or divorced should still file their petitions and then work on building their case to convince Immigration of the validity of their marriage despite the fact that the marriage is failing or has ended. In the event that the application to remove condition is approved Immigration will send the beneficiary his or her ten-year permanent resident card. The beneficiary is then eligible to file for citizenship once he or she has accrued three years as a permanent resident and he or she is still married to his or her spouse. In the event that Immigration denies the beneficiary’s application to remove condition the beneficiary has the option of filing an appeal, a motion to reopen, or a motion to reconsider. If the beneficiary’s application to remove condition is ultimately terminated, the beneficiary will have the opportunity to request a second review by the Immigration judge while he or she is in deportation/removal proceedings.
Disclaimer: This article is a broad overview of Attorney Byars’ observations. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.
About the Writer:
Safiya Byars ([email protected]) is the senior partner and owner in the Law Office of Safiya Byars (www.byarslawgroup.com). She is an active member of the Caribbean and International communities in Georgia. She graduated Summa Cum Laude from the University of Montevallo and received her law degree from the University of Alabama in Tuscaloosa, Alabama. Her office is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Attorney Byars handles all immigration matters, deportation defense, family law issues, and business formation/litigation. To discuss you case, contact Attorney Byars at 404-992-6506 or 678-954-5809.
