I-751 PETITIONS TO REMOVE CONDITIONAL RESIDENCY

A conditional permanent resident is required to submit a Petition to Remove Conditions (Form I-751) within the 90- day period of time immediately preceding the second anniversary of the date on which the alien obtained conditional permanent residence.  The conditional resident must file the petition jointly with his or her spouse, unless certain conditions exist for a waiver.

A jointly filed Petition to Remove Conditions must meet the requirements of being:

• • Filed at the proper USCIS Service Center (with the proper filing fee) within the mandated time period.
  • Signed by the conditional resident and the alien’s spouse.
  • Accompanied by supporting documentation confirming the validity of the marriage.

The joint petition must be filed with either the Vermont Service Center or the California Service Center,depending on the residence of the conditional resident.

If the joint petition is properly filed, USCIS shall determine whether:

• • The marriage was entered into in accordance with the laws of the place where the marriage took place.
  • The qualifying marriage has been annulled or terminated (other than through death of the spouse).
  • The marriage was entered into for the purpose of procuring permanent resident status for the alien.

Upon proper filing, conditional resident status is extended automatically until such time as USCIS adjudicates the petition.  This means that the alien can work and travel and the I-797 receipt along with a copy of the resident card is proof of the ability to work and travel.

If the conditional resident is not able to file the joint petition prior to the two-year anniversary of obtaining conditional permanent residence, a late-filed joint petition may be considered by USCIS only if the conditional resident can demonstrate good cause and extenuating circumstances for the failure to timely file. Examples of good cause and extenuating circumstances include but are not limited to hospitalization, long term illness, death of a family member, recent birth of a child, or a family member on active duty with the U.S. military. The conditional resident must include a written explanation for the failure to timely file. Failure to include a written explanation will result in a denial without a Request for Evidence being issued. The denial will result in the issuance of a Notice to Appear in immigration court.

If the joint petition is not filed with U.S. Citizenship and Immigration Services (USCIS) by the filing deadline, the conditional resident will accrue unlawful presence until such time as the joint petition is filed and USCIS accepts the filing. The conditional resident could thus face a three- or ten-year bar if he departs the United States prior to filing and acceptance by USCIS.

Dependent children who acquired conditional residence status concurrently with the parent may be included in the joint petition.  Concurrent acquisition applies to all children whose residence was acquired within ninety days of the parent.  However, all dependant children must pay the biometrics fee.  Dependent children who obtain conditional residence outside the ninety-day period must file their own I-751 application and cannot be included in the parent’s I-751.  Dependent children who cannot be included in the joint petition due to lack of concurrent acquisition or the death of the parent may file a separate petition.

A conditional resident is not required to be physically present in the United States when the joint petition is filed; however the conditional resident and spouse must return to the United States to be present for any requested USCIS interview. There is also no limit to the number of petitions that may be filed.  Additional evidence should be submitted with a subsequent petition.

DOCUMENTARY REQUIREMENTS IN AN I-751 APPLICATION

If the couple is still married and living together, they file a joint petition. The joint petition should be accompanied by supporting evidence that the marriage was not entered into for the purpose of evading the immigration laws of the United States. Documents which may be submitted include:

• • joint ownership of property
  • joint leases
  • commingling of financial resources such as joint bank accounts, joint credit cards, joint bills.
  • Proof of trips taken together
  • Photos of the couple together and with family members’
  • Jointly filed tax returns
  • birth certificates for children born of the marriage
  • affidavits of persons having knowledge of the bona fide marital relationship

INTERVIEW REQUIREMENT FOR A JOINT PETITION

After receiving the joint petition, the USCIS service center reviews the filing to determine whether to waive the interview required by the Immigration and Nationality Act.  If the Service Center is satisfied that the marriage was not for the purpose of evading the immigration laws, the interview may be waived and the petition approved at that stage. However, if USCIS is not satisfied, the petition will be forwarded to a USCIS District Office for further determination. The USCIS district office will then either determines to waive the interview and adjudicate the petition or instead schedules an interview.  While a well-documented case is less likely to result in an interview, USCIS also may engage in verification of information through its fraud unit or otherwise and may schedule an interview if derogatory information is discovered.

At the interview in a jointly-filed petition, if the couple appears at the interview together and the I-751 was timely-filed, USCIS has the burden of proving that the marriage was not entered into in good faith.  This means that USCIS cannot demand that the couple prove that their marriage was entered into in good faith.

DEATH OF THE SPOUSE DURING THE TWO-YEAR CONDITIONAL PERIOD

A conditional resident does not need a separate hardship waiver if the petitioning spouse died during the two- year conditional period. The conditional resident must still properly file Form I-751 and appear for any required interview, but the Board confirmed that regulation  specifically exempts this type of case from the joint filing and joint interview requirements and does not require any separate waiver to be approved.

WAIVER OF THE JOINT FILING REQUIREMENTS FOR THE I-751

The law provides for three different types of waivers of the joint filing requirement:

• • Divorce: Where the marriage was entered into in good faith but has been terminated by a final divorce or annulment;
  • Extreme Cruelty: Where the qualifying marriage was entered into in good faith, but during the marriage the foreign national spouse or child was abused or subjected to extreme mental cruelty;
  • Extreme Hardship: Where an extreme hardship would result if the foreign national were removed.

A conditional resident may cite multiple bases for a waiver on one Form I-751 if she is independently eligible for each waiver. For example, if a conditional resident was abused and then divorced because of the abuse, she could cite the first two factors.

If a conditional resident files a joint petition and while the joint petition is pending, they finalize a divorce, USCIS permits them to substitute a waiver for a jointly-filed petition.  This means that  an alien doesn’t have to file another I-751 if he or she gets divorced while the I-751 was pending.

SHOWING A GOOD FAITH MARRIAGE IN AN I-751 WAIVER

To demonstrate that the marriage was entered into in good faith, the conditional resident must show that he entered into the marriage intending to build a life with his spouse. The documents used to establish eligibility for one of the good faith waivers will therefore be the same types of documents used to establish the bona fide nature of the marriage at the time the conditional residency was granted.  The Because the period of conditional residency is the focus of the USCIS inquiry, USCIS will look closely at the timing of a terminated marriage. Consequently, documenting the courtship and period prior to the marriage may also be important. For instance, if the couple separated shortly after conditional residence was granted, the conditional resident will have to provide a compelling set of documents to overcome the appearance of marriage entered into for the purpose of evading the immigration laws of the United States. Because the burden of proof for a waiver is on the conditional resident, they should be encouraged to thoughtfully gather their evidence prior to submitting the waiver packet.

Good Faith but Divorced

Waivers based marriages enter into in good faith but which are terminated are probably the most commonly used of all of the joint filing waivers. A conditional resident spouse and/or child may file this type of waiver only after the marriage has been judicially terminated or annulled.  Generally, USCIS will only require a copy of the judicial decree that terminates the marriage.

Good Faith but Battered or Subjected to Extreme Mental Cruelty.

As with the “good faith but terminated” waivers, waivers of the joint filing requirement in this category

also require a showing that the qualifying marriage was entered into in good faith. “Good faith but battered” waivers, however, do not require the marriage to have been terminated. They do require, though, that the conditional resident or his or her child have been battered or subjected to extreme cruelty at some time during the course of the marriage. A conditional resident may apply for the waiver based on abuse to herself, or to her child regardless of the child’s citizenship or immigration status.  A child may also apply for the waiver based on abuse to himself. The regulations provide a list of acts that might qualify as physical abuse or extreme mental cruelty.

The question arises if a marriage has been terminated, why shouldn’t a conditional resident

choose to file under the good faith but terminated provisions, as both require proving an underlying good faith marriage? The most obvious advantage of the “battered spouse/extreme mental cruelty” waiver is that conditional residents who receive that waiver will be eligible for citizenship in three years instead of five years.

Waivers That Do Not Require a Showing of Good Faith Marriage: Extreme Hardship Waivers

The only statutory requirement of the “extreme hardship” waiver is that extreme hardship would result if the conditional resident were removed.  A conditional resident could base an “extreme hardship” waiver on hardship not only to the resident’s immediate family, but presumably to any individual or entity. However, the statute only allows for consideration of hardships that arose “only during the period that the alien was admitted for permanent residence on a conditional basis.” Although this is the most difficult I-751 waiver to obtain, it is the only one that does not require a showing of good faith marriage. This waiver is useful to the conditional resident who may have engaged in marriage fraud, but is probably a better tool for a conditional resident child whose parent entered into a fraudulent marriage, as only very compelling hardships would probably merit discretionary relief to a perpetrator of a fraud against USCIS.