Removal of Conditions (ROC) on Residence*

By | US Immigration Attorneys
Posted October 12, 2013

Generally a foreign national (FN) who marries a United States Citizen (USC) and obtains their immigrant visa before they have been married 2 years will receive conditional permanent residence valid only for 2 years. Conditions on residence can be removed either jointly or by waiver of the joint filing requirement.

JOINTLY FILED ROC
A conditional resident (CR) is expected to remove the conditions jointly with their spouse during the 90 day window prior to the expiration of their conditional residence. The form I-751 is utilized and signed by both the CR and USC and evidence supporting their shared life since the time of approval of conditional resident status should be submitted.

If you are late filing you must explain why and ask the Immigration service to accept your late jointly filed ROC.  Failure to do so could cause termination of the CR status and a Notice to Appear (NTA) in Immigration court to issue.

Step-children of the USC who immigrated at the same time with the CR or within 90 days are included with their parent in a single I-751 application and need only pay a separate biometrics fee. However, if the children immigrated more than 90 days after their parent, they will need to file a separate I-751 petition.

A well put together filing can be reviewed by the Immigration service center and approved in less than a year (generally 3-6 months) without the need for an interview.

However, a deficient or sloppy submission may result in a request for evidence, referral to the local immigration office for an interview or investigation and lengthy delays beyond one year.

WAIVERS OF THE JOINT FILING REQUIREMENT
CAVEAT: If you are unable to file jointly with your spouse you should, at a minimum, pay a consult fee to a specialized immigration attorney for a careful screening of your case before you do anything on your own. I would also advise you do not go to any corresponding interview without a good immigration lawyer. If you withdraw your petition , you will not be able to have an Immigration Judge review it!

There are 3 different grounds for not filing jointly with your spouse. You should apply under each and every ground that applies to your situation. If you only select one ground and Immigration denies your petition and places you in removal (deportation) proceedings, you would need to seek a continuance from the Immigration Judge to re-file your I-751 with all grounds you wish to be considered. This little mistake will easily add 1-2 years to the adjudication of your case. In addition, you will pay filing and biometrics fees again.

The three waivers of the joint filing requirement:

  1. The marriage was entered into in good faith but has been terminated by divorce or annulment;
  2. The marriage was entered in good faith, but during the marriage the CR spouse or child was abused or subjected to extreme mental cruelty;
  3. Extreme hardship would result if the noncitizen spouse were to be removed

I will elaborate on each separate ground:

  1. The marriage was entered into in good faith but has been terminated by divorce or annulment
    The evidence considered would be: evidence that the marriage is terminated or annulled (or in the process); comingling of financial assets, length of time the couple lived together evidenced by joint documentation, birth certificates of children born to the marriage, or other relevant evidence.
  2. The marriage was entered in good faith, but during the marriage the CR spouse or child was abused or subjected to extreme mental cruelty;
    This may include the following and more: being the victim of an act of violence, being threatened with violence, being detained forcefully including rape and sexual abuse. Suffering under the effects of extreme mental cruelty is sufficient even in the absence of physical abuse.

    Evidence of abuse may include (but not limited to) expert testimony and/or reports from police, social service agency personnel or social workers. Men can be victims of abuse too.
  3. Extreme hardship would result if the noncitizen spouse were to be removed
    You must show that you would suffer extreme hardship, something more than what would typically result from deportation, based on circumstances that came about after your entry as a conditional permanent resident during the period of conditional residence only.

When and how deportation proceedings affect your case

If your joint petition or waiver is denied the Immigration regulations state that you "shall be placed in removal proceedings." This is your chance to have your decision reviewed by an Immigration Judge\ But don't leave it to chance. Be prepared.

You are still entitled to proof of your conditional resident status even from the time USCIS denies/terminates your status up through your deportation proceedings.

Please contact us if you have further questions or need assistance with your case. We will be happy to help you.  You may call the office on 407-674-6968 or by email: Info@immigrationhelptoday.com. You may also call us at 813-400-0055 to make an appointment at our Tampa location.

Suzanne E. Vazquez - Board Certified ImmigrAttorney by the Florida Bar

 

 

Suzanne E. Vazquez
US Immigration Attorney

 

*This article is about removal of conditions related to family-based immigration. The Eb-5 employment creation visa similarly confers a conditional residence status, but removing conditions on that type of status is distinct and beyond on the scope of this article.

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The Information obtained at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own particular case.