Creating a new hurdle for spouses of U.S. citizens and green card holders (permanent residents), U.S. Citizenship and Immigration Services (USCIS) recently announced that “conditional” permanent residents who wish to apply for a “permanent” green card generally must attend an in-person interview with USCIS. Over 166,000 such requests were filed in Fiscal Year 2017, according to USCIS data. In-person interviews were previously required only when USCIS needed more information from the conditional permanent resident to make a decision.
But here’s the bottom line: It’s never been more important to file an accurate and complete marriage-based green card application on your first attempt, so you can avoid needing to prove the authenticity of your marriage a second time 2 years later.
Boundless remains dedicated to helping you maximize your chance of successfully obtaining a marriage-based green card. We make it affordable to engage an experienced immigration attorney who reviews your entire application and answers your questions before you file with the government. Learn more about how we can help, or check your eligibility through Boundless without providing any personal or financial information.
What is a “conditional” permanent resident?
When a spouse seeking permanent residence has been married to their sponsoring spouse (the U.S. citizen or green card holder) for less than 2 years when their green card is approved, then that green card will provide “conditional” permanent resident status. This means that the green card is good for only 2 years. The purpose of a conditional green card is to help weed out “sham marriages,” where couples get married — and divorce shortly afterward — for the sole purpose of obtaining a green card.
Before this 2-year green card expires, the conditional permanent resident must apply to “remove the conditions” and obtain a “permanent” green card to continue living lawfully in the United States for the long run. This means filing a Form I-751 and submitting new evidence of an authentic marriage. For full details, see this guide to conditional permanent residence.
What is the old policy?
Since 2005, USCIS had followed a policy where most conditional green card holders were not required to a attend an in-person interview in order to obtain a permanent green card. Only if USCIS was not satisfied with the applicant’s evidence of an authentic marriage would an interview be required.
Furthermore, USCIS officers were instructed not to schedule an interview if they could obtain missing documentation or information through the mail, with an official request for evidence (RFE).
What changed under the new policy?
As of December 10, 2018, USCIS effectively turned the old policy on its head: Instead of rarely requiring an in-person interview, USCIS will now rarely waive this requirement.
According to the new policy memorandum (officially called the “Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence”), a conditional permanent resident who wishes to apply for a “permanent” green card generally “must appear for an interview.”
USCIS officers may consider waiving this interview requirement only if all of the following are true:
- There is already enough evidence to decide that the marriage is authentic and not entered into for the sole purpose of obtaining a green card.
- Neither Form I-751 nor the supporting documentation indicate fraud or misrepresentation.
- There are no facts or issues that are too complicated to resolve without an interview.
- USCIS has already interviewed the conditional permanent resident 2 years earlier, as part of the initial marriage green card application.
Who does the new policy affect?
If you were married for more than 2 years when your marriage-based green card was approved, then you already have a permanent green card, you do not need to file a Form I-751, and this policy change does not directly affect you.
If you were married for less than 2 years when your marriage-based green card was approved, and USCIS received your Form I-751 on or after December 10, 2018, then this policy change does directly affect you:
- If you initially applied for a green card from outside the United States, then you were never interviewed by USCIS, so you will almost certainly be required to both attend an in-person interview and demonstrate the authenticity of your marriage (again).
- If you initially applied for a green card from within the United States, then you were previously interviewed by USCIS, so there’s a chance you might not be required to do another in-person interview — but don’t count on it.
According to USCIS data, over 166,000 I-751 forms were filed in Fiscal Year 2017. This suggests that USCIS field offices could see an influx of new interviews under the new policy, slowing down many other other types of applications—including for green cards and U.S. citizenship.
First it’s important to note that all applicants for a marriage-based green card must attend an initial in-person interview to prove the authenticity of their marriage — that hasn’t changed.
But if you’re a conditional permanent resident approaching your 2-year anniversary as a green card holder, you’ll need to be extra careful when completing your Form I-751 and preparing your supporting documents. This means leaving no unanswered questions on the form, making sure that both you and your sponsoring spouse sign the form (if filing jointly), and including every relevant piece of evidence.
If your I-751 is flawless, and you were previously interviewed by USCIS, then you might not have to attend another in-person interview to obtain a permanent green card.
What if USCIS denies my Form I-751?
If you’re unable to satisfy the requirements to remove the conditions on your permanent resident status, USCIS will deny your request. In this case, you would lose your status as a conditional permanent resident and receive a “Notice to Appear” (NTA) in immigration court, the first step of the deportation process.
During this time, USCIS must extend your conditional resident status to legally remain in the United States while an immigration judge reviews your denied Form I-751 in removal (deportation) proceedings.
You may appeal the denial decision only by requesting that the immigration judge review your case, based on the evidence you provided. You may not use new evidence to challenge the denial.
How do I get legal representation in immigration court if my Form I-751 is denied?
If you receive an NTA as a result of a denied Form I-751, it’s important to hire an immigration attorney, especially one with extensive experience representing clients in deportation proceedings.
The American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you. The U.S. Department of Justice also accredits certain nonprofit organizations that provide low-cost or free immigration legal services.