Conditional Permanent Resident Bar Under INA §245(d)

INA §245(d) bars adjustment while family-based conditional residence exists

The first sentence of INA §245(d) provides that the Attorney General may not adjust under §245(a) the status of a person who has been lawfully admitted for permanent residence on a conditional basis under INA §216.

The implementing adjustment regulation similarly lists a person already admitted for permanent residence on a conditional basis as ineligible for ordinary adjustment.

Who becomes a family-based conditional permanent resident?

INA §216 generally imposes conditional residence when permanent residence is obtained through a qualifying marriage that is less than two years old on the date permanent resident status is granted.

This can include residence obtained through:

• Marriage-based adjustment of status;
• Immigrant visa processing through a recent marriage;
• K-1 fiancé(e) adjustment where the qualifying marriage is less than two years old at approval; and
• Qualifying derivative children whose residence is tied to the conditional spouse.

The normal route is Form I-751, not another Form I-485

A family-based conditional resident generally removes the conditions through Form I-751, Petition to Remove Conditions on Residence.

The I-751 adjudication examines whether the qualifying residence should become unconditional under INA §216.

Depending on the filing basis, USCIS can examine:

• Whether the qualifying marriage was entered in good faith;
• Whether the marriage was terminated;
• Battery or extreme cruelty;
• Extreme hardship;
• Eligibility for an individual filing request;
• Fraud or misrepresentation;
• Criminal or other removability issues; and
• Whether the conditions should be removed.

Joint Form I-751 filing

A conditional resident who remains in the qualifying marriage generally files Form I-751 jointly with the petitioning spouse during the 90-day period immediately before the second anniversary of obtaining conditional permanent resident status.

The petition should establish that:

• The qualifying marriage was entered in good faith;
• The marriage was not entered solely to obtain immigration status;
• The parties remain eligible for joint filing; and
• The other statutory and regulatory requirements are satisfied.

Waivers of the joint I-751 filing requirement

INA §216 permits qualifying conditional residents to request waiver of the joint filing requirement in specified circumstances.

Potential waiver bases include:

• The qualifying marriage was entered in good faith but later terminated by divorce or annulment;
• The conditional resident was battered or subjected to extreme cruelty by the petitioning spouse or parent;
• A qualifying child was battered or subjected to extreme cruelty; or
• Termination of residence and removal would result in extreme hardship.

Divorce does not ordinarily require a new marriage-based I-485

A conditional resident whose qualifying marriage has ended should first determine whether a good-faith marriage waiver under INA §216 is available.

The central question becomes whether the original marriage was genuine when entered, not whether it ultimately succeeded.

Trying to avoid the I-751 waiver process by marrying another U.S. citizen and filing a new I-485 generally fails while conditional resident status remains in effect because of §245(d).

Second marriage while still a conditional resident

Consider a conditional resident who:

1. Obtained CPR status through a first U.S. citizen spouse;
2. Divorced;
3. Remarried another U.S. citizen; and
4. Receives approval of a new Form I-130.

The new I-130 does not itself eliminate §245(d).

Employment-based petitions do not normally bypass the bar

A CPR can become the beneficiary of:

• EB-1A;
• EB-1B or EB-1C;
• EB-2 NIW;
• EB-2 PERM;
• EB-3;
• EB-5; or
• Another immigrant petition.

But the existence of the new petition does not permit ordinary §245(a) readjustment while the applicant remains a conditional resident under §216.

Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991)

Matter of Stockwell is the central precedent governing adjustment after termination of family-based conditional residence.

The Board held:

• A person currently holding conditional permanent resident status is prohibited from adjusting under §245(a); but
• Section 245(d) does not prohibit adjustment after the conditional permanent resident status has been terminated.

What counts as termination of conditional permanent residence?

Conditional residence can end under several provisions of INA §216 and its regulations.

Possible circumstances include:

• Failure to timely file a required Form I-751;
• Denial of Form I-751 followed by termination under the governing rules;
• Termination based on a USCIS determination concerning the qualifying marriage;
• Failure to comply with required procedures; or
• Other statutory grounds for termination.

Failure to timely file Form I-751

USCIS's current family-based CPR guidance recognizes that failure to file a timely Form I-751 can result in termination of conditional residence.

A late filing can nevertheless be accepted where the applicant establishes the required good cause and extenuating circumstances.

That does not mean deliberately allowing CPR status to terminate is normally preferable to pursuing an approvable I-751.

Adjustment on a new basis after termination

Once the conditional residence is no longer in force, the applicant may potentially pursue adjustment through a new basis such as:

• A new U.S. citizen spouse;
• Another qualifying family relationship;
• An employment-based immigrant petition;
• VAWA;
• A special immigrant classification;
• Diversity Visa eligibility; or
• Another adjustment statute.

The new case must independently establish:

• A qualifying §245(a) admission or parole, unless an exception applies;
• A valid immigrant classification;
• Visa availability;
• Admissibility;
• No applicable adjustment bar;
• Jurisdiction; and
• Favorable discretion.

Termination and removal proceedings

A conditional resident may be placed in removal proceedings after termination of CPR status.

Important questions include:

• Whether USCIS has terminated CPR status;
• Whether the applicant is seeking review of that termination;
• Whether an I-751 remains pending;
• Whether USCIS or the immigration judge has jurisdiction over a new adjustment application;
• Whether a new immigrant petition has been approved;
• Whether INA §204(c) or another petition bar is alleged; and
• Whether the applicant is admissible.

INA §245(d) specifically bars adjustment under §245(a)

The statutory language states that the person may not be adjusted “under subsection (a).”

That wording matters where the person seeks residence under an independent adjustment statute rather than INA §245(a).

USCIS has recognized in a nonprecedent Cuban Adjustment Act decision that §245(d) does not necessarily govern adjustment under the separate Cuban Adjustment Act because that statute supplies an independent adjustment authority.

Conditional residence and naturalization

A person ordinarily must resolve the conditional basis of residence before naturalization can be approved.

The I-751 history can therefore remain important even where:

• The applicant has accumulated the normal naturalization residence period;
• The marriage continues;
• A Form N-400 has been filed; or
• The conditional green card itself has expired.

Evidence checklist

Frequently asked questions