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Conditional Resident

What Is a Conditional Resident?

A conditional permanent resident is an individual who is classified as a “foreign national,” someone who is a citizen of a non-U.S. nation, who is granted permanent residence in the country on a non-permanent basis. Conditional residents are permitted to stay in the country for a limited period of time and for a specific purpose.

As a general rule, conditional resident cards are either granted for spouses or foreign investors. As opposed to normal green cards which are valid for 10 years, conditional permanent resident cards have a two-year validity period. During that time, the conditional resident can apply to remove the conditional status 

In order to qualify for conditional residency as a spouse, there are residency and marriage requirements in order to remove the conditional part of their residency. Foreign investor conditional residents are required to invest in a new U.S. business and cannot renew their conditional resident status to stay in the country longer.

Key Takeaways

  • A conditional resident is a foreign alien who is granted permission to remain in the United States under certain conditions.
  • Conditional residents are typically only allowed to remain in the United States for two years unless they fulfil certain conditions to allow them to remain as permanent residents.
  • Failing to fulfill and file for permanent resident status correctly at the proper time can result in the USCIS beginning removal actions against the resident.
  • If you are a conditional resident seeking to fulfill your legal obligations to become a permanent resident, or have filed your conditional residence form and are still being removed, an experienced Immigration Law attorney may be able to improve the outcome of your case by utilizing experience and expert knowledge.

Conditional Residents and Immigration Law

Once an individual has been granted conditional residency, they should begin to explore their options for extending their residency permissions if they wish to remain in the country legally. For immigrants who have been granted conditional residency by marrying a U.S. citizen or permanent resident.

In order for conditional residents to become a permanent resident through their spouse their relationship must meet certain standards. These standards can also extend to the children in the custody of the conditional resident as well. The conditional residency standard is met if the applicant is still married to the same citizen or permanent resident after two years.

There are some circumstances where a conditional resident may be permitted to fill out the Form I-751 without the their legal resident or citizen spouse assuming that the marriage was entered into in good faith. According to the U.S. Center for Immigration Services (USCIS) those circumstances are:

  • If the citizen or permanent resident is deceased
  • If the marriage ends in divorce or annulment
  • If the citizen or permanent resident subjected the applicant or their child to “extreme cruelty” or battery
  • If the termination of conditional residence and removal would result in extreme hardship

It is important to note that while the exact requirements may be fulfilled to file a Form I-751 without their spouse, courts may not find that the marriage is in good faith and therefore may deny the application. Additionally, the Form I-751 cannot be submitted with or without the spouse’s endorsement more than 90 days before the conditional residence expires.

Failing to file outside of the 90-day period will result in a series of immediate actions being taken by the USCIS including:

  • Removing the applicant’s conditional resident status
  • Beginning removal proceedings
  • Sending a Notice to Appear at an immigration hearing

At the immigration hearing, the court will presume that USCIS is correct to attempt removal of the conditional resident. The burden will therefore lie with the conditional resident to prove that they have complied with all necessary legal requirements for applying for permanent resident status. If a conditional resident has filled out and filed Form I-751 after the 90-day period, a written explanation must be provided as to why the resident filed outside of the required timeframe.

Conditional residents who acquired their residency from foreign investment they must meet certain requirements. The investment must be in a “new commercial enterprise” and the subsequent conditional residency will only be issued for two years and cannot be renewed. As with spousal applications, foreign investors must file out their application within 90 days of the expiration of their conditional residency.

Bottom Line

If you have been apprehended and are facing deportation despite filling out and filing the relevant form on time, or you were forced to file your forms outside of the 90 day requirement, you will need the help of an experienced Immigration Law attorney. An Immigration Law attorney will be able to advocate on your behalf in order to get you the best possible outcome for your case.

Using their legal expertise, trial tactics, and expert witnesses, your Immigration Law attorney can present your case in the most compelling light possible and deftly navigate the complex processes of immigration bureaucracy as well as the obscure functions of immigration court.

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