Why Do K1 and K3 Visa Beneficiaries Receive a Conditional Green Card?

The two year conditional green card is a result of the Marriage Fraud Amendments of 1986 (IMFA).  At the time Congress was hearing testimony from U.S. citizens about numerous alien spouses who left their sponsor shortly after obtaining their green card.  There was also growing concerns about marriage for hire schemes where U.S. citizens were paid to marry aliens for the sole purpose of obtaining a green card.

To address these problems Congress passed IMFA adding section 216 to the Immigration and Nationality Act.  This act says that anybody who gets a green card through marriage will be issued a two year conditional green card.  This gives the USCIS a chance to review the relationship after two years before granting the permanent or 10 year green card.

The following petitioners will receive a two year conditional green card:

• • Any alien who based upon a marriage to either a citizen of the U.S. or a lawful permanent resident of the U.S. obtains permanent residence within two years of such marriage (i.e. as a spousal Immediate Relative or second preference classification)
  • Any child of such alien who also obtains permanent residence through his or her parent’s marriage within 2 years of the marriage.

The following petitioners do not receive a two year conditional green card but will receive the regular 10 year green card:

• • An alien who obtains permanent residence through a marriage which is more than two years old at the time of admission or adjustment
  • An alien who obtains permanent residence on a basis other than marriage (e.g. a woman who adjusts through an employment-based petition even if she is married to a citizen at the time)
  • An alien who (regardless of the age of the marriage at the time) obtains permanent residence as an accompanying or following to join dependent of an alien who obtains residence under:
    • A special immigrant classification
    • A refugee or asylee classification
    • A preference classification other than second preference
    • Any other provision of the Immigration and Nationality Act or any other law which allows dependents to accompany or follow to join a principal alien

The USCIS is required to notify you of your requirement to remove the conditions 90 days before the expiration of the conditional green card. If the alien or petitioner is outside the United States on government orders such as a military deployment they don't have to file to lift the conditions until after the person returns to the U.S.

To remove the conditions the alien and the petitioner apply using Form I-751 Petition to Remove Conditions on Residence. The fee for this petition is $465 plus $80 for the biometrics.  This fee will go up to $505 plus $85 for biometrics sometime in late 2010.  The Form I-751 must include evidence that the marriage is valid.

Some of the items the Adjudicators Handbook says the USCIS can consider as proof include:

• • Documentation showing joint ownership of property
  • Lease showing joint tenancy of a common residence
  • Documentation showing commingling of financial resources
  • Birth certificates of children born to the marriage
  • Affidavits of third parties having knowledge of the bona fides of the marital relationship ( Note: the affiant must be available to appear at the joint petitioners’ interview if required)
  • Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the U.S.

It is possible for the green card holder to get a waiver to lift the conditions without the petitioner under the following conditions:

• • The termination of the marriage through annulment divorce or the death of the petitioning spouse
  • The refusal of the petitioning spouse to join in the filing of the petition
  • A conditional resident child being unable to be included in the joint petition of his or her parent (e.g. if the parent died before seeking removal of conditions)
  • The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent

Note the following conditions can cause the USCIS to suspect your case of being fraudulent:

• • the petitioner fails to sign the form
  • there is insufficient evidence
  • a large age difference exists between the spouses
  • the married couple is not living together
  • a prior I-751 was denied
  • the petition was filed untimely without a good reason for being late