Chapter 3 - Petition to Remove Conditions on Residence

A conditional permanent resident (CPR) is required to meet certain criteria in order to remove the conditions on permanent residence.^[1] In order to request removal of conditions, the CPR must file a Petition to Remove Conditions on Residence (Form I-751).

A. Establishing a Bona Fide Marriage

A qualifying marriage is the marriage upon which a CPR obtained permanent resident status. Generally, in order to remove conditions, the CPR must establish that a qualifying marriage is or was bona fide. A bona fide marriage is a marriage:

• That was entered into in accordance with the laws of the place where the marriage took place;^[2] 
• Absent a waiver,^[3] that has not been judicially annulled or terminated, other than through the death of a spouse;^[4] 
• That was not entered into for the purpose of procuring admission as an immigrant;^[5] and
• For which no fee or other consideration was given to the petitioning spouse, CPR spouse, or other interested party for filing the immigrant or fiancé(e) visa petition that formed the basis of the CPR’s admission to the United States.^[6]

The statutory provision on fee or consideration does not refer to fees paid to attorneys, notarios, or other persons who assisted with filing petitions, but rather refers to instances where a fee or other consideration was paid in exchange for the petitioner filing Form I-130 or Form I-129F in connection with a fraudulent marriage. This could include direct monetary payments from the beneficiary to the petitioner, or indirect forms of consideration made to induce the petitioner to file such as payments or gifts from the beneficiary’s family or to the petitioner’s family. If a fee or other consideration was paid in order to enter into a fraudulent marriage or to obtain an immigration benefit through a fraudulent marriage, the CPR is ineligible for removal of conditions.

To request removal of conditions on residence, the CPR must provide USCIS with evidence that the qualifying marriage is or was bona fide.

Evidence of a bona fide marriage may include, but is not limited to:

• Documentation showing joint ownership of property;^[7] 
• Lease showing joint tenancy of a common residence;^[8] 
• Documentation showing commingling of financial resources;^[9] 
• Birth certificates of child(ren) born to the marriage;^[10] 
• Affidavits of third parties having knowledge of the bona fides of the marital relationship;^[11] and
• Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States.^[12]

The CPR must also provide the following information on the petition:

• The actual residence(s) of the CPR and the petitioning spouse or stepparent from the time that the CPR obtained status;^[13] and 
• The CPR and the petitioning spouse or stepparent’s places and names of employers from the date that the CPR obtained status.^[14]

In some circumstances, when the CPR is unable to file jointly with the petitioning spouse or stepparent, the CPR may be able to file an individual filing request or request a waiver of the joint filing requirement.

B. Basis for Filing

The following table outlines the circumstances under which CPRs may file a Form I-751 and the corresponding filing type.

When filing Form I-751 requesting a waiver, the CPR can select all bases for filing that apply. USCIS considers eligibility for all grounds requested. However, when there are multiple filing bases, USCIS only approves a waiver based on one category. For all bases for filing, a CPR child may also file separately if the child is not included on the CPR parent’s petition.

C. Filing Requirements

1. Proper Filing and Initial Review

A CPR may file Form I-751 regardless of whether or not the CPR is physically present in the United States. However, if the CPR is outside the United States at the time of filing, the CPR must return to the United States with the CPR’s petitioning spouse and dependent children to comply with the interview requirement, unless the interview requirement is waived by USCIS, and any biometrics collection requirements.^[22]

The CPR must file a jointly-filed Form I-751 during the 90-day period immediately preceding the second anniversary of the CPR receiving permanent resident status. A CPR may file the joint petition after the expiration of the 90-day period if the CPR establishes that there was good cause and extenuating circumstances for failing to file a timely joint petition.^[23]

CPRs may file individual filing requests and waiver requests at any time before they are subject to a final order of removal. CPR children who must file a separate Form I-751 may do so at any time before they are subject to a final order of removal.

In order for the Form I-751 to be considered properly filed, it must be properly signed, accompanied by the appropriate fee, and contain evidence that the marriage was not entered into for the purpose of evading immigration laws.^[24]

CPRs must file the Form I-751 according to the form instructions. The Form I-751 must be:

• Timely filed;
• Submitted on the current edition of the form;
• Filed at the correct filing location;
• Accompanied by the correct filing fee; and
• Properly signed.^[25]

When initially reviewing the Form I-751, USCIS first determines whether the Form I-751 has been properly filed according to the criteria above and in the form instructions. If the petition is not properly filed, USCIS may reject the Form I-751.

If the petition is properly filed according to the form instructions, the officer determines whether the CPR was properly classified as a CPR and whether the CPR submitted evidence of a bona fide qualifying marriage.^[26] Then the officer proceeds with a full review of the record and examination of eligibility.

2. Late Joint Filing

The CPR must file a jointly-filed Form I-751 during the 90-day period immediately preceding the second anniversary of the CPR receiving CPR status. If the CPR and the petitioning spouse file a joint petition untimely, USCIS determines if the failure to file timely is based on good cause and extenuating circumstances.^[27] The CPR and petitioning spouse should submit an explanation for the untimely filing and any supporting documentation at the time of the initial filing.

If there is no explanation included with the initial filing, the officer issues a Request for Evidence (RFE). If there is no response to the RFE, the officer denies the petition for abandonment (no response) for failing to comply with the filing requirements.^[28]

If an explanation for the untimely filing is provided, the officer evaluates the explanation in relation to the time of eventual filing. The officer also reviews any accompanying documentary evidence submitted in support of the explanation for the late filing, if any, to determine whether there is good cause and extenuating circumstances for the late filing.^[29] Supporting documentary evidence may not be necessary if the explanation for the late filing is acceptable on its face.

Good cause and extenuating circumstances for filing an untimely joint petition are not defined by the Immigration and Nationality Act (INA). Good cause and extenuating circumstances may include, but are not limited to:

• Hospitalization; 
• Long-term illness; 
• Death of a family member and bereavement;
• Recent birth of a child; 
• Legal or financial problems;  
• Providing care for someone; 
• Serious family emergency;  
• Work commitment; or
• A family member on active duty with the U.S. armed forces.

Forgetting to file, absent other factors, generally does not constitute good cause and extenuating circumstances.

If USCIS determines that the CPR and petitioning spouse have established good cause and extenuating circumstances, then USCIS proceeds with adjudication of the case. If USCIS determines that the CPR and petitioning spouse have failed to establish good cause and extenuating circumstances, then USCIS denies the case for failure to comply with the filing requirements.^[30]

D. Overseas on Military or Government Orders

In general, the CPR spouse and petitioning spouse must jointly file the Form I-751 within the 90-day window before the 2-year anniversary of obtaining CPR status. However, if the CPR or petitioning spouse or stepparent is stationed or deployed overseas as a result of official military or government orders, the requisite filing period does not begin until the CPR or petitioning spouse or stepparent on military or government orders returns to the United States or is no longer on active duty. However, they may also file the Form I-751 during active duty service at any time after the commencement of the 90-day period.^[31]

USCIS may waive the deadline or the requirement for an interview.^[32] To make this determination, USCIS reviews the evidence submitted to determine the nature of the deployment and the bona fides of the marriage.

1. Eligible Military Members

For the purpose of Form I-751, a military member is any U.S. citizen or lawful permanent resident currently stationed or deployed on official orders as a member of the U.S. armed forces, including:  

• Active duty;  
• Selected Reserve of the Ready Reserve member; or  
• Activated reservists and mobilized National Guardsmen.^[33]

2. Evidence of Military Service

USCIS reviews every properly filed petition for the following:

• Evidence that the petition involves an active duty military member;
• Evidence establishing that the active duty military member is stationed or deployed overseas on official orders; and
• Evidence establishing a bona fide qualifying marriage exists.

USCIS considers military-specific evidence as strong evidence towards establishing the bona fides of the qualifying marriage. Such evidence may include, but is not limited to:

• All pages of the service member’s Application for Identification Card/DEERS Enrollment (Form DD-1172-2), naming dependents;
• Dependent’s Military Identification and Privilege Card;
• Certificate of Overseas Assignment to Support Application to File Petition for Naturalization (Form DD-1278);
• Copy of Permanent Change of Station Orders issued to the service member for permanent tour of duty overseas that specifically name the spouse and children (if any);
• Designation of the beneficiary on the Service Member’s Group Life Insurance policy;
• Evidence of a Family Service Members’ Group Life Insurance policy;
• Evidence of the military member’s health insurance policy on behalf of the dependent;
• Documentation showing that the spouse and child (if any) reside in military base or post housing;
• Powers-of-attorney of life insurance designation (general or specific);
• Military TRICARE medical ID card for use at military medical facilities;
• Leave and Earnings Statement showing Family Separation Allowance or allotments to dependents;
• Living will or last will and testament;
• Pre-authorization for emergency financial assistance; and
• Copy of the service member’s Record of Emergency Data.

3. Adjudication of Military Cases

The following table displays the steps USCIS takes when adjudicating military cases: 

4. U.S. Federal Government Workers

The same policies and procedures that apply to military members also apply to non-military U.S. federal government workers currently working abroad on official government orders. Evidence of government employment or orders may include:

• A copy of travel orders issued by the government;
• A copy of government identification (such as a PIV card or credential);
• Copies of pay stubs or W2s issued by the government;
• Copies of bank account statements showing pay from a U.S. government entity; and
• An APO, FPO, or DFO mailing address.

E. CPRs with Pending Naturalization Applications

Because of differences in processing times between the Form I-751 and the Application for Naturalization (Form N-400) and because CPRs are eligible to apply for naturalization (if otherwise eligible),^[38] there may be instances when a CPR applies for naturalization while the CPR’s Form I-751 is still pending. If the CPR has a pending Form N-400, USCIS adjudicates the Form I-751 before or at the same time as the Form N-400.

In most cases, CPRs must have an approved Form I-751 before USCIS may naturalize them. However, there are limited circumstances in which the CPR is not required to file a Form I-751 before naturalizing.^[39]

F. Standard of Proof

The standard of proof in establishing eligibility for removal of conditions is preponderance of the evidence. If the initial filing does not contain sufficient evidence to demonstrate eligibility by a preponderance of the evidence, USCIS may issue an RFE or schedule an interview or both.^[40] USCIS adjudicates the Form I-751 based on the information contained in the form, submitted documentation, other information in the record, and testimony provided at the interview (if any).^[41]

G. Interview

CPRs who file a Form I-751 must appear for an interview at a USCIS field office, unless USCIS waives the interview requirement.^[42] USCIS officers may consider waiving the interview in cases where:

• The officer considers they can make a decision on the petition based on the record because the record contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
• There is sufficient evidence in the record of the CPR’s eligibility for waiver of the joint filing requirement, if applicable;
• There is no indication of fraud or misrepresentation on the Form I-751, in the supporting documentation, or elsewhere in the record;
• There are no complex facts or issues that require an interview or sworn statement to resolve questions or concerns; and
• There are no criminal bars rendering the CPR removable.

When determining whether to waive an interview, the considerations listed above apply regardless of whether the Form I-751 is filed as a joint petition, individual filing request, or a waiver. For a joint petition, the statute requires USCIS to interview both the CPR and petitioning spouse.^[43] If the CPR is filing an individual filing request or waiver, only the CPR must appear for the interview.^[44]

If the required party or parties fail to appear for the interview, USCIS denies the Form I-751, terminates the CPR’s status, and initiates removal proceedings, unless the CPR establishes good cause for the failure to appear and USCIS reschedules the interview.^[45] USCIS determines whether there is good cause on a case-by-case basis.

H. Rebuttal of Derogatory Information

If USCIS determines that there is derogatory information related to the bona fides of the qualifying marriage, then USCIS provides the CPR with an opportunity to rebut such information during the interview or in response to an RFE or Notice of Intent to Deny (NOID), or both.^[46] If the CPR files a waiver or individual filing request, USCIS provides this opportunity only to the CPR.

If the CPR overcomes the derogatory information, and there are no other unresolved eligibility issues, USCIS approves the petition.^[47] If the CPR fails to overcome the derogatory information, USCIS denies the petition.

I. Suspected Fraud

If USCIS determines that the marriage was designed to circumvent U.S. immigration laws, then USCIS issues an RFE or NOID and gives the CPR an opportunity to rebut the evidence of record.^[48] If the CPR files a waiver or individual filing request, USCIS provides this opportunity only to the CPR.

USCIS examines the CPR’s response to the RFE or NOID. If the response is insufficient to overcome the derogatory information in the record, and USCIS still finds that despite the rebuttal the marriage was designed to circumvent the immigration laws, then USCIS denies the case.

Footnotes 

[^ 1] See INA 216. See 8 CFR 216.

[^ 2] See INA 216(d)(1)(A)(i)(I). See 8 CFR 216.4(c)(1). For purposes of evaluating a marriage that involved a minor, officers may consider the legality or validity of the qualifying marriage if new evidence is presented at the Form I-751 stage that explicitly raises these concerns.

[^ 3] A CPR may seek a waiver if the CPR entered into the qualifying marriage in good faith, but the marriage was terminated other than by death of the petitioning spouse. For information about good faith marriage waivers for CPRs whose marriage was terminated, see Chapter 5, Waiver of Joint Filing Requirement, Section B, Good Faith Marriage (Divorce) [6 USCIS-PM I.5(B)].

[^ 4] See INA 216(d)(1)(A)(i)(II). See 8 CFR 216.4(c)(2). See Matter of Tee (PDF), 20 I&N Dec 949 (BIA 1995). (A noncitizen becomes statutorily ineligible for approval of a joint petition under INA 216(c)(1) where the marriage has been terminated before USCIS adjudicates the petition.)

[^ 5] See INA 216(d)(1)(A)(i)(III). See 8 CFR 216.4(c)(3).

[^ 6] See INA 216(d)(1). For additional information on USCIS’ interpretation on bona fide marriages, see 8 CFR 245.1(c)(8)(iii)(F) (explaining that a bona fide marriage, in cases where the beneficiary is in deportation proceedings, means the parties entered into the marriage in good faith and not for the purpose of procuring immigration status for the beneficiary, and no fee or consideration was given, other than attorney fees). See the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (PDF) (November 29, 1990).

[^ 7] See 8 CFR 216.4(a)(5)(i).

[^ 8] See 8 CFR 216.4(a)(5)(ii).

[^ 9] See 8 CFR 216.4(a)(5)(iii).

[^ 10] See 8 CFR 216.4(a)(5)(iv).

[^ 11] See 8 CFR 216.4(a)(5)(v).

[^ 12] See 8 CFR 216.4(a)(5)(vi).

[^ 13] See INA 216(d)(1)(B)(i).

[^ 14] See INA 216(d)(1)(B)(ii).

[^ 15] See INA 216(c)(1)(A). See 8 CFR 216.4(a)(1).

[^ 16] See 8 CFR 216.4(a)(2).

[^ 17] See INA 216(c)(1)(A). See 8 CFR 216.4(a)(1).

[^ 18] See INA 216(c)(4)(B). See 8 CFR 216.5(a)(1)(ii).

[^ 19] See INA 216(c)(4)(C). See 8 CFR 216.5(a)(1)(iii).

[^ 20] See INA 216(c)(4)(C). See 8 CFR 216.5(a)(1)(iii).

[^ 21] See INA 216(c)(4)(A). See 8 CFR 216.5(a)(1)(i).

[^ 22] See 8 CFR 216.4(a)(4). See instructions for Form I-751.

[^ 23] See INA 216(d)(2)(B). See 8 CFR 216.4(a)(6).

[^ 24] See 8 CFR 216.4(a)(1). CPRs requesting a waiver based on extreme hardship are not required to submit evidence of a bona fide qualifying marriage.

[^ 25] Current information about filing locations, fees, and other information about how to file can be found at the Form I-751 and Fee Schedule (Form G-1055) webpages. For more filing information, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests [1 USCIS-PM B]. Note that, for U.S. citizen petitioners who are deployed in active duty status with the U.S. armed forces, USCIS accepts the Form I-751 without the petitioner’s signature if it is accompanied by the required evidence listed in the form instructions, along with evidence of the military member’s assignment abroad.

[^ 26] CPRs requesting a waiver based on extreme hardship are not required to submit evidence of a bona fide qualifying marriage.

[^ 27] See INA 216(c)(1)(A) and INA 216(d)(2). See 8 CFR 216.4(a)(6).

[^ 28] See INA 216(c)(1)(a) and INA 216(d)(2).

[^ 29] See INA 216(d)(2)(B).

[^ 30] See INA 216(c)(1)(A) and INA 216(d)(2)(B). See 8 CFR 216.4(a)(6).

[^ 31] See INA 216(g)(1).

[^ 32] See INA 216(g)(2).

[^ 33] This includes, but is not limited to, Permanent Change of Station Orders or Deployment Orders issued to the military member for a permanent tour of duty.

[^ 34] If no U.S. address is available, USCIS may hold the petition until the petitioning spouse or stepparent or CPR provides an appropriate address.

[^ 35] An example of a petition that could be statutorily denied is a case where the petition was based on a non-qualifying relationship, such as a joint petition submitted by a CPR child and the child’s grandparent. An example of a petition that could not be statutorily denied is a case where the petitioner submitted some evidence but the petition does not contain sufficient evidence to establish eligibility.

[^ 36] If no U.S. address is available, USCIS may hold the petition until the petitioning spouse or stepparent or CPR provides an appropriate address.

[^ 37] For additional information about RFEs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 38] See 8 CFR 216.1.

[^ 39] See Volume 12, Citizenship & Naturalization, Part G, Spouses of U.S. Citizens, Chapter 5, Conditional Permanent Resident Spouses and Naturalization [12 USCIS-PM G.5].

[^ 40] For additional information about RFEs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 41] See INA 216(c)(3)(A)(ii). See 8 CFR 216.4(c) and 8 CFR 216.4(a)(5).

[^ 42] See INA 216(d)(3). See 8 CFR 216.4(b)(1).

[^ 43] If the petitioning spouse is not deceased. See INA 216(c)(1)(B).

[^ 44] See INA 216(c)(1)(B). See 8 CFR 216.5(d).

[^ 45] See 8 CFR 216.5(d). See 8 CFR 216.4(b)(3).

[^ 46] See 8 CFR 216.4(c)(4).

[^ 47] See 8 CFR 216.4(c)(4).

[^ 48] See 8 CFR 216.4(c)(4).