Conditional Residency. Form I-751.
An immigrant spouse who obtained her/his green card and conditional-residency pursuant to a qualifying marriage must petition for removal of this status within ninety days of the second anniversary of the grant of the conditional residency under 8 CFR 216.4(a)(1). If, at the time of adjustment-of-status interview or application for admission into the United States, the marriage is less than two years old, the immigration status is granted for a two-year period. The actual green card expires on the second anniversary of the date the conditional residency was granted, not two years from the date of marriage. In order to convert the immigrant’s status to one of an unrestricted, permanent residency, the petitioner and the beneficiary must submit a joint petition to remove conditional residency on Form I-751. They must file this petition within twenty-one to twenty-four months of the initial granting of conditional residency.
Conditional residents are aliens who are lawfully admitted for permanent residency pursuant to a qualifying marriage. A qualifying marriage is one entered into fewer than twenty-four months before the alien obtains conditional-residency status by virtue of such marriage. The immigrating spouse and the petitioning spouse must file Form I-751 jointly to remove the conditions of conditional residency of a non American spouse. The filing of the joint petition or a waiver, discussed below, automatically extends the alien’s status until Form I-751 is adjudicated. A conditional resident is entitled to receive an I-551 stamp in his passport or, if no passport exists, on an I-94 for a period of one year while awaiting the decision on the joint petition to remove conditional residency.
Form I-751 must be accompanied by evidence demonstrating that the marriage was entered in good faith. Under 8 CFR 216.4(a), the evidence should include documents establishing joint ownership of property or joint tenancy at a common residence; commingling of financial assets, birth certificates of children from the marriage, photos of the couple taken during marriage ceremony, affidavits of persons having knowledge of the good faith of the marriage; and other documents establishing its bona fides. If an I-751 is not timely filed, the alien’s conditional-residency status automatically terminates, and USCIS may initiate removal proceedings.
Termination of Conditional Residency Status
Conditional residency is terminated if, before the second anniversary of the granting of this status, USCIS determines that:
1. Marriage was judicially annulled or terminated other than through the death of the American spouse;
2. An alien spouse entered into the marriage upon payment of a fee or other consideration to the American spouse to procure entry to the United States;
3. The alien and his American spouse fail to petition USCIS for removal of conditions of residency, or the spouses fail to appear at USCIS interview (unless good cause shown or unless the non-citizen spouse filed Form I-751 seeking a waiver of the joint-filing requirements).
USCIS will lift the conditions of conditional residency if the following requirements are met:
· the qualifying marriage was valid in the jurisdiction where it took place;
· the marriage was entered in good faith;
· during the two-year period of the non-citizen’s conditional residency status, the marriage was not judicially annulled or terminated; and
· no fee was paid to induce the filing of the petition for alien relative.
Waiver of Joint Filing Requirements of Form I-751
If an alien cannot file a petition for removal of conditions on permanent residency with his spouse due to his death or the breakdown or termination of the marriage, he may file alone by requesting a waiver of the joint-filing requirement. Under INA 216(c)(4), there are three grounds upon which USCIS will waive the joint filing requirement:
· Extreme hardship grounds – the conditional resident spouse will be subject to extreme hardship if he is removed from the United States, and the hardship circumstances arose subsequent to the granting of conditional residency;
· Good faith grounds – the conditional resident spouse must show that he entered into the qualifying marriage in good faith at its inception, but the end result was divorce or annulment; or
· Battered child or spouse grounds – the conditional-resident spouse entered into the qualifying marriage in good faith and the conditional resident spouse or child was battered or subject to extreme cruelty by the American spouse or parent. This waiver does not require that the parties be divorced, and it can be filed at any time, even after the expiration of conditional-residency status.
Waiver based on battery and extreme cruelty must include evidence that the battered spouse or child experienced forced detention resulting, or threatening to result in, physical or mental injury, psychological abuse or exploitation, sexual abuse or exploitation, rape, incest or forced prostitution. All applications based upon a claim of extreme mental cruelty must include an evaluation by a professional recognized by the Government as an expert in the field. The regulations state that only licensed clinical social workers, psychologists and psychiatrists are recognized by USCIS as professionals capable of providing such evaluations. The confidentiality of information provided to USCIS concerning the abused spouse or child, including their whereabouts, is protected by the INA and its regulations.
If the marriage is terminated by the death of a spouse and a petition is filed by the deceased petitioner, USCIS may deny the petition unless discretionary humanitarian relief is available to avoid revocation of the petition upon his death. Also, widows and widowers may be eligible to self-petition. The petition should include evidence of the bona fide nature of the marriage and proof that the alien has been a spouse of American citizen for at least two years. In addition, the alien must show that the alien was not legally separated from the American spouse at the time of death or the alien was not remarried at the time of the American citizen’s death. This petition must be filed within two years of the American citizen’s death
Adjudication of Waiver
USCIS’ service centers routinely refer I-751 waiver petitions to the appropriate local office to interview the conditional resident regarding the waiver petition. The conditional resident’s failure to appear for an interview will result in denial of the petition and initiation of removal proceedings unless he establishes good cause for failure to appear and USCIS subsequently reschedules the interview.
USCIS may deny the I-751 waiver petition as a matter of discretion, but it must provide the applicant with its decision in writing. If USCIS denies the petition, then the decision must state the reasons for denial. A denial results in termination of the conditional-residency status, and the conditional resident must surrender his green card. There is no appeal, but the conditional resident can seek de novo review of the I-751 before an immigration judge. USCIS bears the burden of proof in removal proceedings if it terminated the petition for substantive reasons such as fraudulent marriage or fee paid for filing of the visa petition. The denial of the petition for removal of conditional residency by the immigration judge may be appealed to the BIA and subsequently can be reviewed by the court of appeals of the appropriate circuit.
Representing conditional residents when life does not go as planned is a challenging task. When a couple is separated or divorced at the termination of the two-year conditional period, hiring of an experienced attorney is very important. An experienced attorney can determine the proper timing of the filing of the Form I-751, assist in selection of the right waiver, gather necessary documents so that the client is prepared for every contingency and prepare the documents so that they comply with USCIS’ constantly evolving policy and requirements for I-751 filings.