Section 216 of the Immigration and Nationality Act creates a system where immigrants who have attained their conditional permanent residency are granted a green card for two years. Within 90 days of the two-year anniversary of the initial grant of conditional status, i.e. a green card, the immigrant and the immigrant’s spouse must file with CIS a joint petition to remove the conditions on residency along with documents to prove that the marriage was not entered into for the purpose of evading the immigration laws in the United States. If the service approves the joint petition, it lifts the condition on the immigrant’s residency status and the immigrant will receive a permanent green card valid for 10 years.

If a couple fails to file within this 90-day period, then CIS will terminate conditional residency status and will issue a notice to appear, a charging document that says that the immigrant has been referred to an immigration judge for removal proceedings.

If the immigrant fails to file a joint petition or even an application for waiver of a joint petition after the expiration of the conditional residency status, the immigrant’s filing can still be accepted late if the immigrant can show “good cause” for the late filing. “Good cause” is not defined by law and is up to the discretion of the CIS officer whether or not there is cause for allowing a late filing. Therefore, it is always advisable that a very strong reason that is well documented is made to request the late filing beyond the 90-day period. The later the filing usually the more difficult the case will be to have its allowed to be filed. As opposed to a filing that is made during the 90-day period, a filing made days and weeks or even years after the expiration of conditional status will have to have with it a large volume of sufficient evidence to show that there is absolutely no question as to the bona fide nature of the marriage.

If the petition is never filed or even if filed late, the immigrant will begin to accrue unlawful presence. However if CIS accepts a late filed petition, the unlawful presence terminates and the conditional resident status will retroactively become authorized.

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