FAQs on Conditional Permanent Residence

My experience answering questions on Avvo is showing me that certain questions frequently. I blogged about one area lately here, regarding Afidavits of Support: http://martinvisalaw.blogspot.com/2009/03/faqs-on-affidavit-of-support.html. Also related to family-based immigration is the popular subject of conditional permanent residence.

What is conditional permanent residence?

Conditional permanent residence (CPR) is granted to a foreign national who applied for permanent residence (green card) based on a marriage that is less than 2 years old at the time of the PR interview. This provision is designed to reduce marriage fraud. Towards the end of the 2 year CPR period, the couple needs to file a petition to remove the conditions. If approved, the foreign national then gets “full” permanent residence.

How do I remove the conditions on permanent residence?

You and your spouse need to file an I-751, Petition to Remove the Conditions on Residence, within the 90 days before the CPR expires. This means, normally, that the couple files the petition 21 months or later (but no more than 24 months) after CPR was granted.

The I-751 is filed with USCIS, accompanied by evidence that the marriage was entered in good faith. This evidence can include copies of documents in joint names of the couple, e.g., insurance papers, bank statements, credit card statements, leases, mortgages, joint tax returns, birth certificates for any children of the marriage, etc.

After you file the petition, you and your spouse might be called for interview. CIS has discretion to waive the interview if the agency doesn’t think that an interview is needed. If there is no interview, your case will be approved and you will get your new green card in the mail.

Will CIS remind me that I need to file the I-751? 

No, CIS will not send any reminders that your CPR is about to expire. You need to track this expiration date very carefully yourself. What if I am late filing the I-751? Failure to file will result in loss of your resident status. Late filings are permitted with sufficient explanation of the reason(s) for being late in filing.

What if my case has not been approved and my conditional green card expires? 

 The receipt for the I-751 filing should include a note automatically extending the permanent residence for one year. This allows the foreign national to continue to work and travel as a permanent resident. If the I-751 is still not decided at the end of that one year extension, the foreign national can visit their local CIS district office to request an I-551 stamp ion their passport. This I-551 stamp is further evidence of permanent residence and, like the I-751 receipt notice, is as good as a green card for work and travel.

What if the marriage has ended or my spouse refuses to sign the I-751? 

You may request a waiver of the joint petitioning requirements if:

• You entered into your marriage in good faith but the marriage ended by annulment or divorce. 
• You entered into your marriage in good faith but during the marriage you were battered by, or subjected to extreme cruelty committed by your spouse.
• You are a widow or widower of a marriage that was entered into in good faith. 
• Terminating your permanent resident status and leaving the US would cause extreme hardship. 

You can claim multiple grounds for a waiver, if more than one reason applies. If applying for a waiver, you can file the I-751 at any time, not just within the 90-days before CPR expires. If you are requesting a waiver, you need to provide the following documents in addition to proof that the marriage was genuine:  
Widow/er: a copy of the death certificate
Marriage terminated: a copy of the divorce decree or other document terminating or annulling the marriage.
You or permanent resident child were battered or subjected to extreme cruelty: include:
A. Evidence of the physical abuse, such as copies of reports or official records issued by police, judges, medical personnel, school officials and representatives of social service agencies, and evidence that the marriage was genuine, as described above.
B. Evidence of the abuse, such as copies of reports or official records issued by police, courts, medical personnel, school officials, clergy, social workers and other social service agency personnel. You may also submit any legal documents relating to an order of protection against the abuser or relating to any legal steps you may have taken to end the abuse. You may also submit evidence that you sought safe haven in a battered women's shelter or similar refuge, as well as photographs evidencing your injuries.
C. A copy of your divorce decree, if your marriage was terminated by divorce on grounds of physical abuse or extreme cruelty.
Extreme hardship if PR not approved: include evidence that your removal would result in hardship significantly greater than the hardship encountered by other aliens who are removed from this country after extended stays. The evidence must relate only to those factors that arose since you became a conditional resident.

Where can I get more information?

CIS website

Photo by dlisbona. (If this couple hasn't filed the I-751 by now, they really have a problem!)

CIS reverses policy on overdue name checks

USCIS has reversed its policy of allowing I-485 (Adjustment of Status) applications, and some other applications, to be approved if the FBI name check was taking longer than 180 days. In February 2008, CIS announced a policy whereby adjudicators could automatically approve adjustment applications where an FBI name check had been pending for more than 180 days and if there were no other reasons to deny the case.

At the time this policy was introduced, security clearance was very slow, sometimes taking months or years. Now, CIS says that the FBI is processing name checks in less than 90 days in many cases. Because so few name checks take over 180 days, according to CIS, they are rescinding last year's policy. If a name check is still pending after 150 days now, adjudicators must contact CIS headquarters, who will ask the FBI for the reason for the processing delay. Depending on the FBI's response, the adjudicator might be allowed to approved the case.

Photo by trongquy_cva

FAQs on Affidavit of Support

I have been actively answering immigration questions on Avvo.com, and many of these questions relate to the Affidavit of Support requirement in many permanent residence applications. The Affidavit of Support and related regulations are complex and are therefore difficult for a lay person to understand. I understand the confusion that many people feel about the I-864, so I hope these FAQs help.

1. What is an Affidavit of Support and when do I need one?

The US government requires petitioners in family-based permanent residence cases to complete and file an Affidavit of Support on connection with the sponsored immigrant. If you are bringing a relative to live permanently in the United States, you must accept legal responsibility for financially supporting this family member. You accept this responsibility and become your relative's sponsor by completing and signing a document called an Affidavit of Support (Form I-864). This legally enforceable responsibility lasts until your relative becomes a U.S. citizen or can be credited with 40 quarters of work (usually 10 years), even if the relationship (e.g. marriage) ends before that time.

2. Do all immigrants need an Affidavit of Support?

No, the following immigrants do not need an I-864:

• Self-petitioning widows or widowers or battered spouses and children (petitioning on a Form I-360).
• Relatives who enter as refugees or asylees.
• People who have worked for 40 qualifying quarters (as defined in Title II of the Social Security Act), or who can be credited with 40 qualifying quarters (e.g. through a family member).
• Children who can automatically acquire citizenship through a parent.

3. What are the income requirements for an Affidavit of Support?

The sponsor must meet certain income requirements: you must show that your household income is equal to or higher than 125% of the US poverty level for your household size. The poverty guidelines change annually and are on this website. If the sponsor is on active duty in the Armed Forces of the United States, and the immigrant she is sponsoring is her spouse or child, the income only needs to equal 100 percent of the U.S. poverty level for the family size.

4. What is “household size?”

The household size includes the sponsor, your dependents, any relatives living with you, and the immigrants you are sponsoring. For example, if you have a spouse and two children and you want want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125% of the US poverty level for a family of six. You must also include in your household size any immigrants you have previously sponsored under this part of the law (who are not yet naturalized citizens).

5. Who can be a sponsor?

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a lawful permanent resident. You must be domiciled in the US. Usually, this means that you must actually live in the US, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, so that you still have your domicile in the United States.

6. What if a sponsor can’t meet the in come requirements?

If you cannot show income of 125% of the poverty guidelines, you can opt for one of the following alternatives:

(a) Show that you have assets worth at least 5 times the difference between your income and the 125% of the poverty guidelines. For example, if 125% is $30,000, and your income is $20,000, you need to show assets worth $50,000, i.e. 5 x $10,000.

(b) Count the income and assets of members of your household who are at least 18 years old and are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent Federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member.

(c) Use the income and/or assets of the immigrants you are sponsoring, if you have listed them as dependents on your most recent Federal tax return or they have lived with you for the last 6 months. If the immigrant(s) meets these criteria, you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

7. Where can I find more information?

For further details about the Affidavit of Support obligations, please see the following links:
USCIS Affidavit of Support FAQs
DOS FAQs
My prior blog on 2009 poverty guidelines.

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I welcome all the comments to this posting. However, please do not ask questions about your particular case via the blog. I can only provide general information on this forum. If you want information specific to your situation, please contact an experienced immigration lawyer directly.
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