This article is written by Harsh Shah. Harsh is a qualified Solicitor and Attorney from India with Masters of Law in International Business Law from London. For any further questions, you could reach the author on [email protected]
Immigration is an international movement of non-resident aliens with an intention to seek permanent residency, naturalized citizenship or employment permit of a designated country. Constitution empowers United State Government to regulate the immigration of foreigners in and within the United States. Under the prevailing laws, an individual either born within the territorial jurisdiction of the United States or to citizens of the United States in a foreign country, or possessing a lawful permanent residency for a prescribed period of time is eligible to qualify for naturalization. For securing hassle-free immigration visas, the involvement of competent immigration attorney, recognized organizations, accredited representatives, free legal services recognized by the department of justice, or providers of pro bono services has played an important role.
Permanent residency is a legal status granted by the U.S. Citizenship and Immigration Services on passing the consular processing test or the adjustment of a status test. Under the consular processing test, an eligible individual must be qualified to obtain permanent residency by obtaining an immigrant visa from the U.S. Department of State Consulate. On the other hand, an eligible immigrant who is already residing in the United States must apply for adjusting its existing legal status to permanent residency status under the adjustment of status test. Depending on eligibility requirements, an applicant/petitioner is eligible to qualify for permanent residency through its family members, employment, investments, diversity lottery, refugee or asylum status, and other categories prescribed under the immigration and naturalization laws.
The purpose of this article is to understand the procedure of obtaining a green card, what is a conditional green card, what rights, privileges or responsibilities are attached to a conditional green card, how to remove conditions imposed on the green card, what kind of documents are admissible for removal of conditions, and what happens after conditions are removed.
Procedure to obtain a green card:
An application for obtaining permanent residency is ordinarily processed by the United States Citizenship and Services (“USCIS”) within a reasonable time, before forwarding the same to the Department of State’s National Visa Center (“NVC”) for approval or denial of granting permanent residency. Where application is denied, USCIS shall intimate the applicant about its decision with reasons after following due process of law. NVC is responsible for the collection of application fees and supporting documents to assist the Consulate in determining if an individual is eligible to obtain permanent residency status, whether conditional or lawful, after scheduling a personal interview with the prospective applicant / petitioner. On approval of immigrant visa, the Consulate shall issue a sealed Visa Packet for the official use of the U.S. Custom and Border Protection at the time of entering United States. Thereafter, permanent residency card, commonly known as a “Green Card”, whether conditional or lawful, shall be mailed to such individual immigrant within reasonable time on payment of prescribed USCIS immigrant fee.
What is the difference between conditional and unconditional green card?
An ordinarily lawful green card is unconditional and valid for a period of ten (10) years as compared to a conditional green card. A conditional green card is subject to certain terms and conditions for a limited period of two (2) years from the date of issuance. A conditional green card is granted to a spouse, fiancé(e) or the child of fiancé(e) of any United States citizen as well as an employer based Category-5 entrepreneur immigrant (along with the spouse and children of entrepreneur immigrant) who is willing to invest or is in process of investing $1 million (or $0.5 million in targeted employment areas) in a commercial enterprise in compliance with immigration laws.
What are the rights and privileges of a conditional green card?
There is no disparity amongst holders of conditional and lawful green cards. A conditional green card holder, similar to lawful green card holder, is eligible to travel outside the territory of the United States without visas in countries such as Canada, Mexico, Belize, Costa Rica, Bermuda, Bahamas, Cayman Island, U.S. Virgin Islands, Dominican Republic, Jamaica, and Caribbean part of the Kingdom of the Netherland, but subject to certain terms and conditions. Further, a holder of a conditional green card is eligible to freely commute within or outside the boundaries of the United States, engage in lawful trade, business or profession, acquire any movable or immovable property(ies) within the United States, obtain a driver’s license, social security number, employer identification number (if any), receive Medicare benefits as well as supplemental security income, and request visas for immediate family members to live together in the United States. Lastly, they are eligible to apply for citizenship of the United States on maintaining a lawful status of permanent residency under the applicable provisions of immigration laws.
What are the responsibilities of conditional green card holders?
A conditional green Card Holder is a prospective lawful green Card Holder of the United States. A conditional green Card Holder is eligible to obtain a social security number, driver’s license, enroll with a suitable medical plan, must provide accurate information including change of address to the U.S. Citizenship and Immigration Services within reasonable time, avoid engaging in any criminal or unlawful activities which have direct impact on the status of conditional permanent residency, comply with federal, state and local revenue laws, carry proof of conditional permanent residency at all times, effectively maintain the status of conditional permanent residency at all times, engage with selective services where conditional green Card Holder is a male between 18 and 26 years, and under no circumstances engage in any activities which can affect its residency status.
Why are conditions levied on a green card?
Conditional green cards are generally issued to ensure that an immigrant spouse, fiancé or children of fiancé as well as an employer-based Category-5 entrepreneur immigrant including spouse and children of the entrepreneur immigrant has entered into bonafide marriage or lawful business, as the case may be, without evading normal route to obtain immigration visas. In other words, conditional green cards are not issued to support fraudulent marriages or business for evading immigration laws.
Who is eligible to file for removal of conditions on permanent residency?
When neither the spouse is dead, nor there is any change in marital status between the U.S. citizen or unconditional green Card Holder spouse and conditional green Card Holder until two (2) years have passed from the date of legally qualified marriage, then a joint petition duly signed by both of them must be filed along with prescribed fees, regardless of the time physically spent by conditional green Card Holder within the United States. On the other hand, an entrepreneur having a conditional green card is required to individually file a petition for removal of conditions along with prescribed fees and within the prescribed time.
Additionally, holders of conditional green cards must ensure that names of their children (and spouse of entrepreneur) having a conditional green card must be filed along with their petitions, or in exceptional case, separate petition is filed by child or spouse having a conditional green card within the prescribed time period for the removal of conditions, whose names are not included in the petition.
Is there any waiver to file for removal of conditions on a green card?
It is mandatory that a joint petition must be filed by conditional green Card Holder and lawful green Card Holder or citizen of the United States for removal of conditions of the green card, which was obtained on the basis of marriage, or investments made by an entrepreneur under employer Category-5. A waiver to file a joint petition is granted when conditional green Card Holder was not at fault in complying with the requirement of conditional residency and is able to prove one or more of the following exceptional circumstances:
- The Spouse having a lawful green card or U.S. citizenship is dead after entering a bona fide marriage.
- Conditional green card holder including the child is a victim of battery or extreme cruelty by the spouse having a lawful green card or U.S. citizenship.
- Bona Fide marriage is annulled or terminated through divorce.
- Extreme hardship will be caused to conditional green Card Holder as well as parents, child or spouse having U.S. citizenship or lawful green card when the petitioner is deported to his/her original country on failure to remove conditions.
- Purpose of obtaining green card was not with an intent to evade normal immigration laws.
It is pertinent to note that the immigration authorities determine the level of extreme hardship on a case-by-case basis by adopting the interpretation specified by Federal courts and immigration board after considering the circumstantial evidence.
What is the time period within which petition for removal of conditions must be filed?
A petition for removal of conditions from green card must be filed within 90 (ninety) days preceding the expiry of two years commencing from the date of issuance of a conditional green card. A conditional green Card Holder is personally liable to file a petition for removal of conditions within the prescribed time period, even if no prior intimation is issued by immigration authorities. Nonetheless, it is discretionary for immigration board to accept late filing, when petitioner is successful in providing a written explanation of circumstances which prevented them from removing conditions within the prescribed time.
Which kind of evidentiary documents are admissible for removing conditions?
It is an obligation of the entrepreneur to prove that they have not entered into any fraudulent business activities in seeking permanent residency and, therefore, they are required to file incorporation documents of the business organization, federal and state tax returns, lawful source of funds, bank statements, stock certificates, mortgage agreements, loan statements, investors’ educational documents, marriage certificate, divorce decree, birth certificates, death certificate of spouse, police clearance certificate for country of origin, photographs, audited financial statements, executed contracts, business licenses, payroll records, Form I-9, Form W-4, and such other documents which ensure that the investor has engaged in lawful business under EB-5 entrepreneur immigrant visa category by investing prescribed capital and employing requisite employees under its business venture.
On the other hand, a conditional green Card Holder is obliged to provide that his marriage is bonafide and therefore, is required to file wedding cards, marriage certificate, joint bank accounts, joint credit card statements, joint club membership, joint federal and state tax returns, wedding photographs, email conversations between spouses, joint property tax bills, death certificate of spouse, decree of divorce, evidence of criminal act by other spouse, love letters, birthday cards, affidavit of third parties having personal knowledge about your bona fide marital relationship, birth certificate of child (if any), joint travel documents, utility bills and such other documents showing joint ownership as well as that the marriage between spouses is bonafide without evading normal laws of immigration and nationality or there is legal separation for no fault of conditional green Card Holder.
Additionally, a petitioner must also submit any criminal issues raised between the couple and supplementary documents specified by immigration board in their notice of Request for Evidence. A recipient must respond to the Request for Evidence within a reasonable time specified by the board.
How long does it take to remove conditions on a green card?
Depending on additional evidentiary documents submitted by petitioner on receipt of notice of Request for Evidence and existing case load, USCIS is diligent in determining the status of removal of conditions on the green card before the extension of the permanent residency status has expired.
Can I renew or replace my conditional green card?
An individual on permanent residency status must at all times have a valid and updated green card in order to ensure one’s ability to reside, work and travel within the United States. A lawful green card having 10 (ten) years of validity must be renewed online, by mail or mobile form, within 6 (six) months preceding the date of expiry, whereas a conditional green card must be removed within 90 (ninety) days before the expiry of 2 (two) years from the date of issuance along with prescribed renewal fee and supporting evidentiary documents as discussed above.
An individual is obliged to replace its green card, if the green card is stolen, lost, damaged, a green card contains inaccurate information, green Card Holder has changed their legal name, or where Card Holder commutes daily between The United States and Mexico or Canada.
What happens while a petition for removal of conditions from the green card is under review?
On receipt of the petition for removal, a receipt notice shall be issued to the petitioner confirming the submission of the petition and extending the duration of residency for a period not beyond 1 year until the condition is removed. Until the petition for removal is approved, the petitioner shall be required to attend an appointment of biometric fingerprint and a personal interview with immigration authorities. The purpose of the personal interview is to confirm that the issuance of the immigration visa was not intended to evade normal immigration process, or to enter a fraudulent marriage or unlawful business.
Under what circumstances are privileges of a green card lost?
An unconditional green Card Holder is subjected to deportation proceedings, when the Card Holder fails to timely remove conditions from the green card without showing a good cause of delay by written explanation of unavoidable circumstances, provide evidentiary supporting documents to show bonafide marriage or business as well as where the immigration board is convinced in personal interview that marriage is not bonafide or business is unlawful. It is pertinent to note that no deportation proceeding is valid which is not in compliance with the due process of law. Further, when a lawful or unconditional green Card Holder is physically absent from the United States, without a re-entry permit, for a period beyond 1 year, or has taken up residence of another country, then the green Card Holder loses their status of permanent residency. Upon their sole discretion, an immigration board shall restore privileges of a green card when a good cause is shown in writing by a petitioner who has failed to timely remove conditions.
With an increase in demand to obtain an immigrant visa, United States has taken several precautionary measures to tighten the existing laws governing immigration and national security. The United States is one of the most favored destinations with a wide range of diversity amongst international immigrants and at the same time having ample employment opportunities, the application for obtaining immigrant visas or naturalization is expected to grow every year, in turn ensuring that immigration laws are adequately complied with. Despite having a strict immigration policy in place, international immigrants are advised to diligently file the requisite application for removal of conditions on green card along with supporting evidentiary documents and comply with notice of request for evidence, if any, with the assistance of legal advice in obtaining legal immigrant visas for the purpose of visiting, residing and working in United States.
Disclaimer: This article is to provide general guidance on the subject matter, and is not intended to be an advertisement or solicitation for any professional advice. Advice from an expert should be sought for specific circumstances. The Author is a qualified Solicitor and Attorney from India with Masters of Law in International Business Law from London. The Author disclaims all responsibilities and accepts no liability for the consequences of any person acting or refraining from acting on the basis of the information contained herein. For any further questions, you could reach the author on [email protected]