Removal of conditions in removal proceedings
A spouse who received a green card within two years of the marriage holds it on conditions, and the conditions come off only when a joint petition or a waiver on Form I-751 is approved. When USCIS denies the petition and terminates the status, the person is placed in removal proceedings, and the immigration judge reviews the denial. In that review the government carries the burden of proving the facts that justified termination. This page covers the statute, the three waivers, and how the case is fought in court.
Current as of September 2026. We re-check this page every quarter and after any rule change.
Conditional residence cases arrive in court in one of two ways: the couple missed the joint filing window, or they filed and USCIS did not believe the marriage. Either way the person was a permanent resident, is now charged with deportability for having had that status terminated, and needs the judge to find that the conditions should have been removed. The burden on the facts is on the government. This page is one item on the full list of relief from removal; the USCIS side of the I-751 is handled by our family practice.
How conditional residence works
Under INA 216(a), a spouse who is granted permanent residence within two years of the marriage receives it on a conditional basis. The conditions are removed by a joint petition on Form I-751, filed by both spouses under INA 216(c)(1) during the 90 days before the second anniversary of the grant of conditional residence, under 216(d)(2). USCIS reviews the petition, may interview the couple, and either removes the conditions or terminates the status.
The statute is built around a single question: was the marriage entered in good faith, or was it entered to obtain immigration status? Everything else, the joint petition, the waivers, the interview and the court review, is a way of answering it.
The three waivers of the joint filing requirement
A conditional resident who cannot file jointly, because the marriage has ended or the spouse refuses or the spouse was abusive, may apply alone for a waiver under INA 216(c)(4):
| Ground | What you show | Authority |
|---|---|---|
| Extreme hardship | Removal would result in extreme hardship | INA 216(c)(4)(A) |
| Good-faith marriage that ended | The marriage was entered in good faith and has been terminated | INA 216(c)(4)(B) |
| Battery or extreme cruelty | You were battered or subjected to extreme cruelty by your spouse | INA 216(c)(4)(C) |
The waiver is filed on the same Form I-751, without the spouse's signature, and it can be filed with USCIS after proceedings have begun.
Termination by USCIS, and review before the judge
When USCIS denies the joint petition or the waiver, it terminates the conditional residence and issues a Notice to Appear. Under INA 216(b)(2) and 216(c)(3)(D), and the regulations at 8 C.F.R. 216.4(d)(2) and 216.5(f), the person may seek review of the termination in removal proceedings, and in that review the Department of Homeland Security bears the burden of proving by a preponderance of the evidence that the facts supporting termination are true.
That burden is the reason the court stage is often more favorable than the USCIS stage. Before USCIS, the couple is proving their marriage to an officer. Before the judge, the government is proving that the marriage was not bona fide, or that the waiver ground is not met, and it has to do so with evidence, subject to cross-examination.
Stowers and Mendes: USCIS first, then the judge
The division of labor comes from two Board decisions. In Matter of Mendes, 20 I&N Dec. 833 (BIA 1994), and Matter of Stowers, 22 I&N Dec. 605 (BIA 1999), the Board held that USCIS must adjudicate the I-751 waiver in the first instance, and that the immigration judge then reviews the denial. The judge does not decide a waiver USCIS has never seen. The practical rules that follow:
- A waiver not yet filed is filed with USCIS, even after the Notice to Appear, and the court continues the case while USCIS decides it.
- A new ground is raised the same way. A person whose good-faith waiver was denied and who now has a hardship or abuse ground files that ground with USCIS.
- A denied waiver is reviewed by the judge, with the record from USCIS and any new evidence, and DHS carries the burden on the facts.
File the waiver with USCIS as soon as the ground exists
Because the judge reviews rather than decides, a waiver that is never filed with USCIS never reaches the judge. If the marriage has ended, or the spouse will not sign, the I-751 waiver goes to USCIS now, and the receipt goes to the court. Waiting for the hearing to raise it for the first time leaves the judge with nothing to review.
What evidence of a good-faith marriage looks like
The question is what the couple intended when they married, and the proof is the life they lived. Government examiners and judges look for a shared life documented over time, not a stack of photographs from the wedding. A typical record contains:
- Financial life together: joint bank accounts with activity, joint tax returns, joint leases or a deed, insurance policies naming each other, shared bills and utilities, joint debts.
- Where you lived: the lease or mortgage, mail to both spouses at the same address, driver's licenses, voter or school registrations.
- Children: birth certificates, school and medical records naming both parents.
- The relationship over time: photographs across years and settings, travel records, messages, cards, and evidence of holidays and family events with both families.
- Declarations from people who knew you as a couple: family, friends, neighbors, clergy and employers, each specific about what they saw and when.
- For a waiver: the divorce decree or evidence the marriage has ended; for abuse, the evidence described on the VAWA cancellation page; for hardship, the medical, financial and country-conditions record described on the 212(i) page.
A marriage that ended badly is not a marriage that was fraudulent. The good-faith waiver asks about intent at the beginning, and the record has to show that beginning. Gaps in the joint documentation are explained in the declarations rather than left for the government to characterize.
The hearing
The case is decided at an individual hearing. Both spouses testify if the marriage is intact; the applicant and corroborating witnesses testify if it is not. The government's attorney cross-examines, often on the details an officer found inconsistent at the USCIS interview. The judge decides whether DHS has carried its burden. If the conditions are removed, the person is a permanent resident without conditions and the proceedings end. If the government also charged fraud at admission, the 237(a)(1)(H) waiver is filed in the alternative, and a person with a new qualifying relative may also apply for adjustment of status again.
The fee
USCIS charges a government filing fee for Form I-751, which is not our legal fee. We have not confirmed the current amount for this page, so we do not print it; Form G-1055 is authoritative and we confirm the figure with you before filing.
Read next: adjustment of status in court, the 237(a)(1)(H) waiver, contesting removability, or the individual hearing.
Common questions
USCIS denied my I-751. Do I have to start over in court?
No. When USCIS terminates conditional residence, INA 216 lets you seek review of that decision in removal proceedings. The judge examines the same question USCIS did, whether the marriage was entered in good faith or a waiver ground is met, and under INA 216(c)(3)(D) the Department of Homeland Security bears the burden of proving by a preponderance of the evidence that the facts supporting termination are true. You present your evidence again, and the government has to carry its burden.
My spouse will not sign the joint petition. What can I do?
File a waiver of the joint filing requirement under INA 216(c)(4). The statute provides three grounds: removal would result in extreme hardship, the marriage was entered in good faith but has ended, or you were battered or subjected to extreme cruelty by your spouse. A waiver is filed with USCIS on Form I-751 without the spouse's signature. Under Matter of Stowers and Matter of Mendes, USCIS must decide the waiver first, and the immigration judge reviews a denial.
Can the immigration judge decide a waiver that USCIS never saw?
No. The Board held in Matter of Stowers, 22 I&N Dec. 605 (BIA 1999), and Matter of Mendes, 20 I&N Dec. 833 (BIA 1994), that USCIS adjudicates the I-751 waiver in the first instance and the judge reviews the denial. A person in proceedings who has not yet filed the waiver, or wants to add a ground, files it with USCIS, and the court generally continues the case to let USCIS decide it.
What is the fee for Form I-751?
USCIS charges a government filing fee for Form I-751, which is not our legal fee. We have not confirmed the current amount against the USCIS schedule for this page, so we do not print it. Form G-1055, the USCIS fee schedule, is authoritative, and we confirm the figure with you before filing.
Tell us where your case is. We will tell you what is still possible.
You get a free case review with an attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.