There are many elements of immigration law, policy, and practice that may seem arbitrary or mysterious at first glance. It may be confusing why one person received their green card with no problems while another was issued multiple requests for evidence and asked in for an interview. It may seem unfair that your case is still pending while someone you know was approved months ago.
In most cases, it simply boils down to luck, timing, or minor circumstances that can make a big difference in the processing of your petition or application. In other cases, however, there may be a simple and straightforward answer that explains why your case is being handled a certain way despite others having a different experience.
One example of this is the issuance of the 2-year “conditional” green card versus the standard 10-year green card.
When going through the arduous process of applying for a green card, the goal is most likely to not have to apply for another for a long time. Unfortunately, in some circumstances, USCIS will issue only a 2-year conditional green card, which requires an additional application to “remove conditions” on permanent resident status in order to receive the 10-year card.
In family-based immigration, the reason for receiving a 2-year green card is that you have been married to your US citizen spouse for less than two years when you applied. This rule is essentially a safeguard for the US government, as it reduces the likelihood of fraudulent marriages (i.e. “green card marriages”). If you and your spouse recently married and would like to be able to reside together in the US as soon as possible, chances are you are going to receive a 2-year conditional green card.
There is nothing wrong with receiving this conditional card. A conditional resident has all the rights and privileges of someone with a 10-year card. You can still live and work in the US, as well as travel.
However, it does require some additional work and diligence. Since you have been married to your US citizen spouse for a short period of time, USCIS is going to make you jump through an additional hoop (called the I-751 or removal of conditions process) in order to prove that you have a genuine marriage that has continued to be genuine since your initial entry into the US. It is important to remember that this form must be filed 90 days before your green card expires. If you are late in filing this application, you must submit an explanation showing good cause for late filing.
When filing Form I-751, you must submit new evidence of your bonafide relationship to USCIS. Some examples of strong evidence to provide are: a shared lease, rental agreement, or mortgage; photos together and with friends and family; joint bank accounts and utility bills; evidence of your daily correspondence; and sworn declarations from friends and family. USCIS wants to see that you you reside together, have intermingled finances and resources, and that other people in your life (friends, family, and co-workers) can attest to your genuine relationship.
The alternative to receiving this 2-year conditional green card, is, of course, receiving the 10-year card. 10-year green cards are issued automatically to spouses of US citizens who have been married longer than two years at the time of applying. In this case, you get to to skip the I-751 step and you become eligible to either naturalize (after three or five years) or to simply renew your green card every ten years (with Form I-90).
An important question that can arise from recipients of the 2-year conditional green card is what happens if I do separate from my US citizen spouse? Getting divorced or separating from your spouse does not automatically mean that you had a fraudulent marriage. It is completely normal for a marriage to change or to fail, but it can be worrisome when it means that you can’t come up with the required evidence to timely file an I-751 and maintain your status in the US.
The good news is that it is possible to file an I-751 even if you are separated, divorced, or widowed from your US citizen spouse. This application can be filed without the consent (or signature) of the US citizen, and a lack of evidence of your relationship can be supplemented with a waiver explaining the circumstances of the marriage and how it came to an end. Marital issues are very common and these unfortunate circumstances should not necessitate uprooting your life. We discuss this process in more detail in this blog post.
In short, whether you receive a 2-year or 10-year green card depends on whether you were married to your US citizen partner for more than two years when you applied for permanent residency.