Dependent Children and Removal of Conditional Residence
Posted Dec 26, 2008
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The Vermont Service Center (VSC) of the U.S. Citizenship and Immigration Services (USCIS) recently provided guidance regarding VSC policy and procedure with regard to dependent children of conditional permanent residents. These children are also given conditional permanent residence, which expires after two years unless necessary steps are taken. The granting of permanent residence on a two-year conditional basis is intended as a safeguard against immigration marriage fraud. The process is summarized here, for the benefit of MurthyDotCom and MurthyBulletin readers. Also provided is information on the rule regarding obtaining the receipt notices for Form I-751(Petition to Remove Conditions on Residence), issued in cases involving dependent children of conditional residents.
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Conditional Residence when Marriage is Less than Two Years
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Individuals, who obtain permanent residence (referred to as the "green card") based upon a petition filed by a U.S. citizen spouse, may be subject to conditional residence status for two years. Permanent residence will be conditional if the duration of the marriage has been less than two years at the time permanent residence is granted. This means that it will expire after two years, unless the I-751 is filed when appropriate and approved. This allows the USCIS to double check and reassess whether the marriage was bona fide at the time of its inception.
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This same conditional grant of permanent residence is extended to children who obtain permanent residence based upon the marriage of that parent to a U.S. citizen when the marriage is less than two years in duration. If the parent's marriage is not bona fide, then the children of the foreign national (the step children of the U.S. citizen) cannot obtain any immigration benefits as the result of the marriage. The exact procedure for removing these conditions depends upon the timing of the grant of conditional permanent residence for the child, as explained below.
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Dependent Children Often Not Listed on I-751 Fee Receipt
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As explained in other MurthyBulletin articles, including, Removing Conditions on Marriage-Based GCs (Oct 1, 2004), Form I-751 is used to remove conditions on residence in order to obtain non-conditional lawful permanent resident status. Under current law, dependent children who acquired conditional resident status together with their parent, or within 90 days thereafter, may be included in the joint I-751 petition filed by their parent and that parent's petitioning spouse. In these cases, the VSC issues the "Verification of Inclusion of a Dependent in Filing of Form I-751" receipt notice. Therefore, the dependent child will not receive a separate I-751 receipt and will not be included in the I-751 receipt issued to his or her parent.
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Dependent Children Issued Separate Receipts in Some Situations
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If a dependent child receives a status of conditional lawful permanent resident more than 90 days after his/her parent, a separate I-751 filing generally should be made. Additionally, if the I-751 cannot be filed jointly by the parent and U.S. citizen spouse, due to death or other circumstances, then it must be filed independently.
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A separate I-751 may be filed for each dependent child, even if s/he is eligible to be listed as a dependent in the parent's petition. This may be done to ensure that each conditional permanent resident has a separate fee receipt that documents that her/his conditional status is extended. This option may be particularly helpful for older children, who may need proof of status for travel, drivers' license issuance, and employment eligibility.
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Always Seek Advice for Children's Cases
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Although this article speaks of the children of spouses of U.S. citizens immigrating with the foreign national parent, we wish to clarify that these children are not automatically part of that parent's green card case. The exact procedures depend upon the manner in which the parent's case is being processed and are beyond the scope of the article. However, there are a number of options, and selecting the best approach can make a significant difference in the outcome, particularly for children who were over 16 at the time of the marriage. Matters dealing with children, step children, adoption, and similar relationships are complex and should be discussed with a qualified immigration attorney before the wedding and before making any final immigration plans. Attorneys at the Murthy Law Firm are available to consult on such matters.
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Conclusion
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Conditional permanent residents with dependent children need to be aware of the I-751 requirements, and should carefully consider the law and guidelines when petitioning for the removal of conditions on their children's resident status. It is important to ensure that the conditions on the resident status are properly removed for all members of the family, including children, and that proof of the children's status is available, if needed, while the I-751 is pending.