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Did you know that when someone receives permanent residence because of marriage, their status often has conditions attached?

For people who have been married less than two years, a marriage based green card is conditional, and only lasts for two years. This is because the U.S. government wants to make sure that people are not just getting married for immigration purposes. In order to remove the conditions the applicant has to show that the marriage upon which they “were granted status was entered in good faith and was not for the purpose of circumventing immigration laws.” 

The petition to obtain a green card without conditions is called an I-751, Petition to Remove Conditions on Residence. It is applied for in the 90-day period immediately preceding the expiration of the petitioner's conditional green card. 

If a petitioner files an I-751 and USCIS (U.S. Citizenship and Immigration Services) determines that the marriage was fraudulent, in other words it only happened for immigration reasons, their conditional permanent residence is terminated and the petitioner is placed in removal proceedings.

In a new order handed down by the Board of Immigration Appeals, the government held that an immigration judge must review USCIS's denial of a Form I-751 if requested by the respondent. In Matter of H. N. Ferreira, Respondent, an immigration judge presiding over the removal proceedings of Respondent Ferreira terminated his removal proceedings because DHS (Department of Homeland Security) had moved to do so. But that action effectively left Mr. Ferreira in legal limbo. Without first reviewing the denial of the Form I-751,the immigration judge left Mr. Ferreira in a position where he was no longer a lawful permanent resident, yet also had not been found deportable. 

Importantly, the Board of Immigration Appeals ruled that just because DHS moves to terminate a proceeding does not mean the Immigration Judge has to do so. Instead an immigration judge should ‘consider the underlying facts and circumstances.' 

This decision is significant because it makes clear that an immigration judge has the authority to review a denial of someone's I-751, so that respondents are not left in “legal limbo.” The BIA stated that “legal limbo” is not simply being out of lawful immigration status, but the inability to access the sole form of review expressly provided for by law.”

Because of this ruling, people who have applied for the conditions on their permanent residence to be removed, but have then been placed in removal proceedings, will be able to know clearly what immigration status they are in.

If you have questions about filing a Form I-751 or any other immigration filing please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.