When Your Conditional Residence Can Be Revoked

Find out when a conditional resident could lose the right to a green card.

By , J.D.

A few categories of people immigrating to the United State start out not with regular permanent residence, but what's called "conditional residence." Their conditional green card is valid for only two years, at the end of which they must, in order to switch to a permanent green card (permanent U.S. residence) fulfill specific conditions and successfully file an application with U.S. Citizenship and Immigration Services (USCIS).

Specifically, conditional green cards are issued to two types of immigrants, namely those who applied for green cards based on:

  • marriage to a U.S. citizen (or based on their parent's marriage), where the marriage was less than two years old at the time of approval for U.S. residence or entry to the U.S. on an immigrant visa, and
  • investment in a U.S. business (referred to as an EB-5 or entrepreneur visa/green card).

If you hold a conditional green card, here's what to watch out for in order to make sure you abide by the terms of your status and can eventually qualify for permanent residence, rather than having the U.S. government revoke or cancel your right to be in the United States.

Violation of Terms of Your Conditional Status

Whether you're a conditional green card holder or a permanent resident, you have certain responsibilities in order to maintain your status in the United States. You must, for example:

  • File federal, state, and all applicable local income taxes. If you do not file federal income tax returns during a time when you are living outside the U.S., or if you mark your status as nonimmigrant on your U.S. tax returns, you will be deemed to have abandoned your lawful resident status.
  • Register with the Selective Service if you are male and between the age of 18 and 26, informing the U.S. government that you are available to serve in the U.S. armed forces. (Failure to do so is both a crime and a civil violation.)
  • Inform the Department of Homeland Security (DHS) about any changes in your address, by filing Form AR-11 (which you can do online) within ten days of moving.
  • Not leave the U.S. with the intention of living somewhere else, and in particular not spend more than 12 months in another country without first applying for a U.S. reentry permit.

If you violate any of the above responsibilities, your conditional green card can be revoked, in which case you would be removable from the United States.

Discovery of Fraud or Other Misinformation Used to Gain Status

If U.S. immigration authorities discover that you didn't deserve your immigration status in the first place, they can take steps to revoke your conditional residence.

For example, if you are alien entrepreneur who obtained your investment capital through illegal means (such as through the sale of illegal drugs), and U.S. immigration authorities find out about it, your conditional resident status could be revoked. (See 8 C.F.R. § 216.3.)

Or, if you got your conditional residence based on marriage and the qualifying marriage was a sham to get a green card or has been judicially annulled or terminated (other than through the death of your spouse); or you paid the U.S. citizen to get you a green card; your conditional resident status may be revoked. You may request a hearing to review this determination. (See § 216 of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1186a.)

Becoming Deportable From or Inadmissible to the United States

Like any green card holder, you can be removed from the U.S. if you do something that makes you deportable under Section 237 of the Immigration and Nationality Act (I.N.A.) (8 U.S.C. § 1227), such as committing a crime or espionage or engaging in terrorist or subversive activity.

Also, if you leave the U.S. for more than 180 days (around six months) and try to return, you can be found inadmissible. (You might remember that you had to overcome the grounds of inadmissibility when first applying for the green card, such as proving that you didn't have any communicable disease of public health significance, weren't likely to become a public charge, and again, hadn't committed significant crimes.)

Failure to Submit Application to USCIS to Remove Conditions Before the Deadline

During the ninety days before the two-year anniversary of the date on which you received your conditional lawful resident status, you must apply to USCIS to have the conditions removed. The exact procedures to follow depend on your status:

  • If your conditional green card is based on marriage, you should file Form I-751, Petition to Remove the Conditions on Residence.
  • If your conditional green card is based on investment, you must file Form I-829, Petition by Entrepreneur to Remove Conditions.

Failure to file the appropriate application by the deadline will in most cases result in you losing your conditional green card. Exceptions can be made in some urgent situations, however. Talk to an attorney for details.

Failure to File Sufficient and Convincing Application to Remove Conditions

Of course, even if you do file the required application, you must succeed in convincing USCIS that you deserve to convert from conditional to permanent residence. You'll need to carefully fill out the form and attach convincing documentation to prove your case.

With a marriage-based application, your main concern will be showing that you and your spouse are still married and sharing a life, and that the marriage is not a fake or fraud. Focus on supplying documents like shared lease or mortgages, bank accounts, children's birth certificates, and so forth. Don't just send in the same materials that USCIS has seen before. Gather more recent materials. If you're separated, divorced, or your spouse has died, your case isn't hopeless, but you'll need to apply for a waiver. (Get an attorney's help with this.)

If you have been granted an EB-5 visa, you will need to show that you followed through by making the required investment and providing employment to ten or more U.S. workers. For example, you should provide audited financial statements, business receipts, payroll records, bank statements, business licenses, tax returns, and Form I-9s. An attorney can help you with all this.

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