People who are granted their legal permanent residency less than 2 years from the time that they were married will receive what is called “conditional permanent residency.” This type of permanent residency is the same as regular permanent residency in all respects, i.e., right to work, right to travel, etc., with one important exception: the legal permanent resident must apply to remove the conditions within three months before the two years expires from the time that he or she initially received permanent residency. This application is done on a form I-751 and requires that the applicant provide information and supporting documents to demonstrate that he or she is still married.

Waivers if Separated or Divorced

If the conditional permanent resident is no longer married, or is separated, United States Citizenship and Immigration Services (“USCIS”) provides several “waivers,” or forgiveness provisions, under which the conditional permanent resident may still keep his or her permanent residency. One requires that you demonstrate that, if you are still married, that your marriage was in good faith and your removal from the United States would cause you extreme hardship. The second requires you to demonstrate that your marriage was in good faith only, but only if you are divorced. The third waiver requires demonstration of battery or extreme cruelty. It is advisable, therefore, to obtain the second waiver, which requires divorce, since it requires only that you demonstrate a good faith marriage.

The provision of law controlling conditional legal permanent residents requires the USCIS to place in immigration proceedings any persons whose I-751 application for removal of conditions is denied. Therefore, if you have filed an I-751 and you have divorced, or are now separated, it is likely that you may be placed in immigration proceedings. Your status as a legal permanent resident is extended during the time that your I-751 is adjudicated or while your case is pending.