What happens when couples come face-to-face with the final immigration hurdle? Many people think that once the original petition for an immigrant spouse (I-130) is approved the application for removal of conditions is a mere formality. In fact, this is where USCIS will scrutinize the application the most. Removal of conditions allows the foreign spouse to transition from the 2-year Conditional Green Card to a 10-year Green Card.[1] Most spouses at this time will be filing a joint I-751 in the 90 days preceding the second anniversary of their green card approval (21 months after it was approved). It is imperative that the spouses file on time: if they do not, the foreign national spouse will fall out of status and will be put into removal proceedings (aka deportation!).[2]

Should a couple miss the deadline, it is still possible that USCIS still accept a late-filed petition if there is a statement included with the petition stating good cause or extenuating circumstances.[3] If you and your spouse find yourself in this situation, please contact a reputable attorney immediately, and they will be able to advise you as to your best course of action. If the application is received on time, the foreign spouse’s status will be extended while the application is being reviewed. Together with the I-751 form, the couple must include proof of a bona fide (good faith) marriage. The preparation of a complete and robust application is essential to ensure that the foreign spouse is approved and reduce stress throughout the process. The evidence included with the application should show:

  • Joint ownership of property;
  • A lease showing joint tenancy;
  • Documentation showing the comingling of financial resources, such as joint bank accounts, both spouses’ names on bills,  joint health insurance coverage, and joint life insurance;
  • Birth certificates of children born of the marriage (if applicable);
  • Affidavits from third parties attesting to the bona fides of the marriage;
  • Any other documentation that the marriage was not entered into to evade the immigration laws of the United States (e.g. pictures of them attending lifecycle events or joint purchases of furniture).[4]

From the moment the spouse receives their Conditional Green Card, spouses should be documenting their life together on paper as much as possible. In some cases, however, there may be financial restrictions or personal circumstances that prevent the couple from accumulating all of the suggested evidence (e.g. if the couple doesn’t purchase property, they can’t show joint ownership). When these circumstances arise the affidavits from the US Citizen or Permanent Resident spouse and third parties must be as detailed as possible establish that the marriage was entered into in good faith. To ensure that the application meets the required standard it is crucial to consult with an attorney who will be able to identify any weaknesses in the application which could lead to a Request for Evidence (this is a request by USCIS for additional evidence to prove the that the marriage was in fact entered into on a good faith basis because they are not satisfied by the evidence originally provided) or an eventual denial.

Once the application is reviewed, USCIS may waive the interview requirement if they are satisfied by the presented evidence that marriage was not for the purpose of evading immigration law.[5] BOTH spouses will need attend the interview. If both spouses do not attend the interview then the foreign national spouse will lose their status and deportation proceedings will be brought against them. We understand that this process can be taxing on both spouses, and to make the process as easy and anxiety-free as possible, please consult with an attorney who will be able to guide you through these crucial final steps and ensure that USCIS is treating you fairly.

If you have any questions regarding the removal of conditions process please contact our associate Lora Minicucci at lminicucci@smalawyers.com.  We are here to help.

[1] 8 C.F.R. § 216.4(a)(1)

[2] 8 C.F.R. § 216.4(a)(6)

[3] 8 C.F.R. § 216.4(a)(6)

[4] 8 C.F.R. § 216.4(a)(5)

[5] 8 C.F.R. § 216.4(b)(1)

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