The concept of “conditional” immigration status was introduced by the Immigration Marriage Fraud Amendments of 1986 and it was intended to deter and detect marriage fraud. It's provisions require the citizen and non-citizen spouses to jointly file a petition to remove condition within the 90-day period prior to the second anniversary of the conferral of “conditional” status. This had the unintended effect of compelling non-citizen spouses to remain in bad, and even abusive, marriages. The 1990 and 1994 Amendments to the law introduced waivers allowing non-citizen spouses to self-petition to remove conditional status, thereby providing a means to free themselves from bad relationships while still retaining their lawful permanent resident (LPR) status.
While most Petitions to Remove Condition (Forms I-751) are filed jointly and on time, immigration practitioners routinely deal with the special problems and issues arising from late filed cases and cases filed by conditional residents seeking a waiver of the joint-filing requirement on one of the specified grounds. This article is intended to look at some of the special issues arising from late-filed petitions, petitions seeking a waiver of the joint-filing requirement, and other unusual situations.
Late Filing of Petition to Remove Conditions
In general, a conditional permanent resident is required to submit a Petition to Remove Conditions (Form I-751) within the 90 days prior to the second anniversary of the date on which the alien obtained conditional permanent residence. Although the statute directs the U.S. Citizenship and Immigration Services (USCIS) to notify conditional residents of the need to file a timely petition, at times conditional residents are not notified or they overlook the timely filing of the I-751.
The law provides that failure to properly file Form I-751 within the 90-day period preceding the second anniversary of the LPR status means the automatic termination of the alien's status and the commencement of removal proceedings. In practice, the USCIS can and does routinely receive, accept and adjudicate late-filed petitions. In that case, the law provides that USCIS may accept and adjudicate the Petition but only if the alien establishes “good cause and extenuating circumstances”, along with any corroborating evidence, for failing to file the I-751 during the statutory period. If the conditional permanent resident (CPR) did not include a written explanation for the late filing, USCIS will issue a request for evidence (RFE), requesting a reasonable explanation for the late filing and corroborating evidence. If USCIS receives a response to the RFE, the immigration services officer (ISO) will evaluate the explanation, along with any corroborating evidence that was submitted, to determine if the CPR established good cause for the late filing. If USCIS determines that good cause was established for the late-filed petition, it may proceed with adjudication of the I-751. If USCIS determines that the explanation and corroborating evidence, if any, do not establish good cause for the late filing, the Petition will be denied and the conditional resident will be placed in removal proceedings.
Waiver of Joint Filing
There are many scenarios in which the joint filing of the I-751 is not possible. For example, if the citizen/LPR spouse dies during the two-year period, or if the conditional resident and citizen/LPR spouse are divorced, or in the process of divorce, or if the conditional resident has been the victim of domestic abuse, the I-751 cannot be filed jointly. In these situations, the conditional resident may ask for a waiver of the joint filing requirement on one of several grounds. To be granted a waiver of the joint filing requirement, the conditional resident must establish that
The marriage upon which his or her status was based was entered into in good faith by the conditional resident, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition; or
The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the spouse or child was battered or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent.
Some of the most common of these scenarios include the following:
The USC/LPR Spouse Is Deceased
The law provides that if the USC/LPR spouse dies during the two-year conditional period, the conditional resident can individually file the Petition to Remove Condition. In this scenario, the waiver provisions of INA 216(c)(4) do not apply. However, the conditional resident still has the burden of demonstrating the bona fides of the marriage by presenting documentary evidence which meets the statute’s four-part test. In situations where evidence of the bona fides of the marriage is weak or unavailable, it may also be possible for the conditional resident to use the extreme hardship waiver, but only if such hardship arose during the two-year period of conditional residence.
The USC/LPR Spouse and the Conditional Resident Are Separated, Pending Divorce/Annulment
There is no “good faith” waiver of the joint filing requirement for a conditional resident who is legally separated from the USC/LPR spouse but not yet divorced. If USCIS receives a waiver request on the basis of termination of marriage, but the divorce or annulment is not final, the officer may issue an RFE with an 87-day response period. If the conditional resident responds to the RFE in time and establishes eligibility for the “good faith” waiver, USCIS will adjudicate the petition on the merits in accordance with established procedure. If the conditional resident fails to respond to the RFE, or if the response does not establish eligibility for the waiver, USCIS will deny the I-751, issue a Notice of Termination of Conditional Resident Status and refer the for the issuance of a Notice to Appear (NTA). In that case, the conditional resident will have the opportunity to establish eligibility for the waiver in a de novo hearing before an Immigration Judge.
The USC/LPR Spouse and the Conditional Resident Are Separated, But No Final or Pending Divorce/Annulment
If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated based on the bona fides of the marriage. It is important to note that USCIS may not deny a jointly-filed petition just because the parties are not living together at the time the I-751 is filed or during the adjudication of the I-751. This does not mean that the marriage was not bona fide at its inception. In practice, according to the USCIS’s procedure for assessing fraud, in all likelihood, cases in this category will be scheduled for interview. At the time of an interview, the conditional resident should be prepared to produce documentary evidence and credible testimony to establish the existence of a bona fide marriage.
The Conditional Resident and/or Child of the Conditional Resident Have Been Battered and/or Subject to Extreme Cruelty
In 1990 amendments to INA §216 added a waiver for conditional resident spouses and children who have been the victims of domestic abuse. This form of waiver provides important protection for conditional resident spouses under pressure to remain in abusive relationships so as to preserve their lawful status or that of their child. Persons facing this situation need not subject themselves and their children to such abuse or threats of abuse, but may use the battered spouse waiver as a means to remove conditional status.
This waiver may be used if either the conditional resident or the conditional resident's child has been the target of abuse by the USC/LPR spouse, parent or stepparent. The conditional resident parent of a battered or abused child may apply for the waiver regardless of the child's immigration status. Moreover, the conditional resident may apply for the waiver regardless of present marital status; the conditional resident may be residing with the USC/LPR spouse, or may be divorced or separated.
Regulations define battery or extreme cruelty as "any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury." Acts of violence include “psychological or sexual abuse or exploitation, including rape, molestation, incest [if the victim is a minor] or forced prostitution.”
As with any petition, the outcome of the case depends on the strength of the evidence. According to the regulations, for claims involving physical abuse, the conditional resident may submit any credible evidence including, but not limited to, “expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel." In addition, it is advisable to include a narrative from the conditional resident, describing in detail the nature and extent of the abuse.
For conditional resident spouses in abusive marriages, this form of waiver offers protection and hope and a means of removing conditional status that does not depend on the good will or cooperation of the USC/LPR spouse.
The Conditional Resident and USC/LPR Spouse Are Living Abroad
There is no requirement that a conditional resident be physically present in the United States at the time the I-751 is filed and conditional residents living abroad are not excused from the timely filing of the petition. In such cases the conditional resident spouse, whether filing jointly or individually, must file case with the service center serving the place of last U.S. residence.
Please note that I-751’s filed by conditional residents who are overseas pursuant to military or government orders and who have valid APO/FPO addresses, USCIS will review the I-751 and supporting documentation and, if no interview is required, it may approve the Petition and remove the conditional status.
While in most cases, Petitions to Remove Condition are jointly filed by co-habiting spouses, there are many situations in which the I-751 is filed individually, usually but not always as a waiver case. And with more than 15,000 individual or waiver cases filed each year, there are more variations in filings than can be addressed in a single article. However, like most immigration applications, the quality and quantity of the evidence submitted and the thoroughness of preparation is what differentiates successful cases from those that end up before the immigration court.
Questions regarding Petition to Remove Conditions on Residence can be addressed in a scheduled consultation with a Gherasimov Law Firm attorney.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.