Removing the Condition on Residence for Spouses and Children

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Foreign spouses who apply for US residence after being married for less than two years must apply to remove the condition on their residence within two years of becoming a US resident.

A foreign spouse who has been married for less than two years at the time of filing for family-based immigration receives "conditional" permanent residence. The foreign spouse's children also receive conditional status. The foreign spouse and US petitioning spouse must file to remove the condition on residence using form I-751 within the 90 days preceding the two year anniversary of the foreign spouse being granted permanent residence. Failure to file before the period of conditional residence expires results in automatic revocation of permanent residence and work authorization and renders the conditional resident deportable. Timely filing a petition to remove the condition automatically extends the conditional resident's status and work authorization.

Conditional status for both the alien spouse and that spouse’s sons or daughters is revoked after two years if the alien doesn’t apply to remove the condition or if they don’t appear for the interview.  8 USC 216(c)(2).  The alien may apply for a hardship waiver of the condition if the alien demonstrates that extreme hardship would result if the condition is not removed and terminated and that the alien is not at fault in trying to meet the requirements.

USCIS is required by statute to issue a decision within 90 days of the date of the interview.  INA INA 216(c)(3)(A)(ii).

There are three paths to removing the condition on permanent residence:

  1. The foreign and US spouses are still married and file jointly to remove the condition on permanent residence,
  2. The foreign and US spouse remain married, the foreign spouse files alone to remove the condition and claims battery, or extreme cruelty,
  3. The foreign and US spouse remain married, the foreign spouse files alone and claims extreme hardship, or
  4. The spouses have divorced and the foreign spouse files to remove the condition and must merely prove the the marriage was in good faith and not for immigration purposes.

In all four of the situations above, the primary goal is is the same: to show that the marriage was for love and companionship and was a real, bona fide marriage and there was no immigration fraud.  However, where the foreign and US spouses are still married, the foreign spouse faces the much more difficult burden of showing battery, extreme cruelty, or showing extreme hardship.

USCIS will only consider evidence of extreme hardship that occurred during the period of conditional residenceMatter of Singh, 24 I.&N. Dec. 331 (BIA 2007), see also, INA 216(c)(4), which provides:

In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis.

It's not entirely clear if this provision applies to evidence of battery or cruelty, but the statute itself only mentions evidence of extreme hardship as subject to this narrow time range.

Click here to view a real USCIS request for evidence for an
I-751 case listing all of the evidence USCIS wants to see

USCIS finds the following evidence very useful to prove that the marriage was bona fide and not for immigration purposes.:

  • Wedding invitations
  • A wedding album
  • A joint lease
  • Comingled financial assets (credit cards, bank accounts, etc.)
  • 3rd party sworn affidavits attesting to the bona fides of the marriage parties
  • Anything to show that the marriage was not entered into for fraudulent purposes
  • Other evidence to show good moral character

The federal courts have held that an I-130 beneficiary is entitled to an in person interview, what is now called a "Stokes Interview" to show the bona fides of the marriage.  Stokes v.  INS, 393 F.Supp 24 (SDNY, Nov. 10, 1976).  USCIS is required to provide at the Stokes Interview: (1) notice, (2) a verbatim record, (3) subpoena power, and (4) the right to cross-examine.

Any I-751 waiver filed that does not claim physical or emotional cruelty must include proof of the following:

  • The marriage was entered into in good faith
  • The marriage was legally terminated
  • The alien was not at fault
  • The alien spouse may file the waiver when divorce proceedings commence INA §216(c)(4)(B), but the divorce must be complete before the I-751 decision is issued.

Petitioner must prove that the marriage was not for immigration fraud purposes and that no fee was given in exchange for marriage.  Under the Immigration Act of 1990 the burden is on the respondent to prove elements by clear and convincing evidence.

The only basic requirement the foreign spouse must prove is that there was a valid and subsisting marriage.  Courts have rejected USCIS claims that the marriage must be “viable” to support removal of the condition.

Separation after a bona fide marriage does not preclude adjustment to permanent resident.  Bark v. INS 511 F.2d 1200 (9th Cir. 1975).  And adjustment of status for a fiancée is not precluded where a bona fide marriage occurred within the prescribed period (90 days) followed by a separation within 30 days.  “If a marriage is not sham or fraudulent from its inception, it is valid for the purposes of determining eligibility under INA §245 until it is legally dissolved.”  Dabaghian v. Civiletti, 607 F.2d 868 (9th Cir. 1979).

Where a marriage is bona fide, an alien applying for preferred status based on marriage is not excludable merely because he is separated from his wife.  Matter of Pierce, 17 I. & N. Dec. 456 (BIA 1980).  There is no bar to immigration benefits where a husband and wife are separated but expect to achieve reconciliation.  Matter of Gonzalez-Portillo, 13 I. & N. Dec. 309 (BIA 1969).

The maximum penalty for marriage fraud for immigration benefits is five years imprisonment and a $250,000 fine.  Any couple who thinks they can make it through three to four years of living together to perpetrate a marriage fraud is most likely mistaken.  And USCIS separates the spouses at the I-751 interview and asks each of them questions separately about how the couple spends its time.  The officer will ask everything from where the couple last vacationed to which bathroom the other spouse uses to brush her teeth and what color her toothbrush is.  It is simply impossible for a bogus couple to tolerate living in the same room for three to four years and impossible to fool USCIS when the couple does not live together.  The risk is not worth it.

For conditional residents considering naturalization, conditional permanent residence status time counts toward naturalization.  8 USC 216(e).  If you are a conditional permanent resident who would like to apply for naturalization, please contact us, or visit our naturalization page for more information.

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