Whenever someone obtains a green card through marriage to a U.S. citizen and the case was approved before the two-year wedding anniversary, USCIS will only grant a two-year green card. This is called conditional residency.
Anyone with conditional residency has to go through a process called “removing the conditions” in order to obtain their full permanent lawful resident status. The form used to do this is an I-751. Removing the conditions on a conditional green card isn’t optional, though many people don’t do it.
This post isn’t about how to file an I-751, but about what happens when you don’t.
According to the statute, if the I-751 isn’t filed, the conditional residency is automatically terminated when the card expires. But, like most everything in immigration law, the real answer isn’t that easy.
Many people believe that if the card has expired, their status has expired or has terminated. That’s not exactly true. While the law says conditional residency should terminate if an I-751 isn’t timely filed, USCIS now takes the position that conditional residency doesn’t terminate until an Immigration Judge says it’s terminated.
Getting an Immigration Judge involved can take years and is a cumbersome process. The applicant still has to file an I-751, get it denied, have the Notice to Appear issued, be placed in removal proceedings, and then work through the court system – a system that right now is so incredibly backlogged that new cases are currently being set for late 2019.
If someone never files an I-751, though, what happens?
They will never get placed in removal proceedings to see an Immigration Judge. Under current USCIS policy, USCIS still considers them conditional residents, though their card may have expired years or even decades ago. And despite being considered a “resident,” there is no proof available to them for work authorization or for getting a driver’s license. The person is in a true legal limbo.
If the person is fortunate enough to have another way to file for a green card – through a new marriage or through a child who has turned 21, they cannot just file a new green card application. Since USCIS still considers them as a type of permanent resident, they will deny any new application for residency, believing it to be redundant.
It seems to me that this is an unworkable situation. While filing the I-751 is certainly the advisable route, there has to be a better way to handle cases where someone didn’t and now has a way to re-file for a new green card.
This is an issue I know many advocates are working on, and I know that working together with USCIS we’ll find a common-sense solution. When we do, I’ll be sure to tell you all about it!