DOCUMENT CHECKLIST Completed Questionnaire Check made payable to the “Department of Homeland Security” in the amount of $590.00 Copy (front & back) of Alien Registration Card Copy of Marriage Certificate, with translation if necessary Copy of Divorce Certificate/s (if applicable), with translation if necessary Copy of Lease and/or Mortgage documents (showing both names) since receiving Alien Registration Card Copy of joint checking and/or savings accounts, credit cards other types of bank accounts. Copy of joint Federal Income Tax Returns (showing filing as “married”) from date of marriage to present Copy of insurance policies (showing beneficiary) Copy of joint utility bills Copy of any other joint loans/accounts Original notarized affidavit by at least two people who have known both you and your spouse since your conditional residency was granted. Affidavit must include: o First and last name; o Full address; o Date and place of birth; o Relationship to you or your spouse; and o Details explaining how the person acquired his/her knowledge of your relationship. Certified Criminal Records (if applicable) Copy of birth certificate(s) of any children (if applicable), with translation if necessary Copy (front & back) of Alien Registration Card of any children (if applicable) If you are no longer married to or are separated from the individual which you obtained your residency through, you must provide the above documents for the entire time period which you were married.
2011 AILA Teleconference/Web Conference © 2011 American Immigration Lawyers Association
Copyright © 2010, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA’s Immigration Practice Pointers, (2010–11 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org.
CONDITIONAL RESIDENCE MARRIAGE CASES: JOINT PETITIONS AND WAIVERS by Suzanne Brown, David Kolko, and Jonathan Greene * 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. 1 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: 1. Filed at the proper USCIS Service Center (with the proper filing fee) within the mandated time period. 2. Signed by the conditional resident and the alien’s spouse. 3. Accompanied by supporting documentation confirming the validity of the marriage. 2 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. 3 If the joint petition is properly filed, USCIS shall determine whether: 1. The marriage was entered into in accordance with the laws of the place where the marriage took place. 2. The qualifying marriage has been annulled or terminated (other than through death of the spouse). 3. The marriage was entered into for the purpose of procuring permanent resident status for the alien. 4. A fee or other consideration was provided (other than to an attorney) in connection with the petition through which the alien obtained conditional permanent residency. 4 Upon proper filing, conditional resident status is extended automatically until such time as USCIS adjudicates the petition. 5 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 condi*
Suzanne Brown founded the Immigration Project, a non-profit pro bono immigration legal services agency serving downstate Illinois, and served as its director from 1987 until April 1995. A graduate of Washington University School of Law, Ms. Brown now manages a small immigration firm in St. Louis which focuses primarily on removal defense and complex family immigration matters. She has twice served as chair of AILA’s Missouri/Kansas chapter, as well as on the Nebraska Service Center liaison committee. She is a frequent resource for local media and service agencies in the area. David Kolko is the owner and managing partner of Kolko & Associates, PC in Denver, Colorado, where he practices family and employment-based immigration law. Since 1988, Mr. Kolko has been an active member of the Colorado bar, and for over 8 years, he has been an active member of AILA. Mr. Kolko currently serves on the executive committee of the Colorado Bar Association’s immigration law section. He speaks on immigration issues for the Colorado Bar Association, the University of Denver, AILA, and at various community and civic events. Jonathan Greene is the owner of the Greene Law Firm, LLC in Columbia, Maryland and practices immigration and family law. He is chair of the Maryland State Bar Association’s immigration section and is a former chair of the AILA DC chapter. Mr. Greene is currently an adjunct professor at Stevenson University. He has been a longtime speaker at AILA conferences, frequently writes articles on immigration law, and regularly appears before the Maryland General Assembly to testify on immigration bills. Mr. Greene was also named “Advocate of the Year” by the AILA DC chapter. 1 8 Code of Federal Regulations (CFR) §216.4(a)(1). 2 Id. 3 Form I-751 Instructions (Rev. 12/30/09). 4 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, (codified as amended at 8 USC §§1101 et seq.), §216(d)(1); 8 CFR §216.4(c). 5 8 CFR §216.4(a)(1). 690 Copyright © 2010 American Immigration Lawyers Association
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tional resident can demonstrate good cause and extenuating circumstances for the failure to timely file. 6 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. 7 The conditional resident must include a written explanation for the failure to timely file. 8 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. 9 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. 10 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. 11 Dependent children who acquired conditional residence status concurrently with the parent may be included in the joint petition. 12 Concurrent acquisition applies to all children whose residence was acquired within ninety days of the parent. 13 However, all dependents included in the petition must pay a separate biometrics fee. 14 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. 15 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. 16 There is also no limit to the number of petitions that may be filed. 17 Additional evidence should be submitted with a subsequent petition. DOCUMENTARY REQUIREMENTS 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. 18 Documents which may be submitted include (1) joint ownership of property, (2) joint tenancy of a common residence, (3) commingling of financial resources, (4) birth certificates for children born of the marriage, and (5) affidavits of persons having knowledge of the bona fide marital relationship. 19
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USCIS Memorandum, D. Neufeld, ”Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions” (Neufeld Memo) (Oct. 9, 2009), published on AILA InfoNet at Doc. No. 09110667 (posted Nov. 6, 2009 ). 7 Id. 8 Id. 9 Id. 10 INS Memorandum, P. Virtue, “Section 212(a)(9)(b) Relating to Unlawful Presence” (Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 ( posted Sept. 19, 1997). 11 Id. 12 8 CFR §216.4(a)(2). 13 Id. 14 Form I-751 Instructions (Rev. 12/30/09). 15 8 CFR §216.4(a)(2). 16 8 CFR §216.4(a)(4). 17 USCIS Memorandum, D. Neufeld, ”Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions” (October Neufeld Memo) (Oct. 9, 2009), published on AILA InfoNet at Doc. No. 09110667 (posted Nov. 6, 2009). 18 8 CFR §216.4(a)(5). 19 Id. Copyright © 2010 American Immigration Lawyers Association
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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. 20 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 district director then either determines to waive the interview and adjudicate the petition or instead schedules an interview. 21 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. DEATH OF THE SPOUSE DURING THE TWO-YEAR CONDITIONAL PERIOD The Board of Immigration Appeals issued a decision on January 25, 2010, which confirmed the regulatory requirements for a conditional resident who must file to remove conditions when the petitioning spouse has died. In Matter of Rose, 22 the BIA confirmed that 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. CHOOSING THE RIGHT WAIVER TYPE The Immigration and Nationality Act provides for three different types of waivers of the joint filing requirement: 1. Where the marriage was entered into in good faith but has been terminated by a final divorce or annulment; 23 2. 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; 24 and, 3. Where an extreme hardship would result if the foreign national were removed. 25 The conditional resident may cite multiple bases for a waiver on one Form I-751 if she is independently eligible for each waiver. 26 If the conditional resident later becomes eligible for a waiver not included in the original petition, she must file a new Form I-751 and pay a new filing fee, although normally USCIS will allow battered conditional residents to withdraw the joint petition and file an amended Form I-751 for an abused spouse or child waiver at the time of interview without paying a new fee. Additionally, USCIS has recently provided new instructions for situations where the petitioning and conditional resident spouse finalizes a divorce or annulment after a joint petition has been filed, but before it has been adjudicated. 27
20
8 CFR §216.4(b). Id. 22 Matter of Rose, 25 I&N Dec. 181 (BIA 2010). 23 INA §216(c)(4)(B). 24 INA §216(c)(4)(C). 25 INA §216(c)(4)(A). 26 Adjudicator's Field Manual, Ch. 25.1(c)(2), note. 27 USCIS Memorandum, D. Neufeld, “I-751 File Prior to Termination of Marriage” (April Neufeld Memo) (Apr. 3, 2009), published on AILA InfoNet at Doc. No. 09072166 (posted July 21, 2009). 21
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CONDITIONAL RESIDENCE MARRIAGE CASES: JOINT PETITIONS AND WAIVERS
Eligibility to Apply for Waiver by Marital Status Type of Waiver
Married
693
Must Show Good Faith Marriage
Divorced
Yes
x
x x
Good Faith Marriage, but Terminated Conditional Resident or Child Victim of Battering or Extreme Mental Cruelty
x
x
Hardship if Conditional Resident Removed
x
x
No
x
WAIVERS WHICH REQUIRE A GOOD FAITH MARRIAGE To demonstrate that the marriage was entered into in good faith, the conditional residnet 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. 28 The regulations at 8 Code of Federal Regulations §§216.5((e)(2)(i)–(iii) suggest additional useful documents to submit in waiver applications. 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 Terminated 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. 29 / 30 Generally, USCIS will only require a copy of the judicial decree that terminates the marriage. Practitioners may file a certified copy. Original documents should be made available at the time of any interview that might be scheduled. 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. 31 A conditional resident may apply for the waiver based on abuse to herself, or to her
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8 CFR §216.5(a)(1). If a conditional resident believes that his or her spouse filed for and obtained a divorce or annulment, but cannot locate any such record, the conditional resident will not be able to apply for the Good Faith but Terminated I-751 waiver. 30 But see Neufeld, April 3, 2009, memo, supra note 27. 31 This is the same standard as the self-petition process for classification as the battered spouse or child of a lawful permanent resident or U.S. citizen created by the Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902–5 (Sept. 13, 1994), which amended the INA by adding new §§201(b)(2)(A)(i), 204(a)(1)(A)(ii). 29
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child regardless of the child's citizenship or immigration status. 32 A child may also apply for the waiver based on abuse to himself. 33 The regulations provide a non-exhaustive list of acts that might qualify as physical abuse or extreme mental cruelty. 34 Lesser acts will normally not rise to the level of extreme cruelty, but a practitioner may be successful in promoting the general tort theory of the “egg shell victim” in some extreme mental cruelty cases. 35 The regulations also provide a list of acceptable documents to evidence claims of physical abuse and extreme mental cruelty. 36 Why one or the other? 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.37 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. 38 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. 39 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.” 40 Although arguably 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.
32
8 CFR §216.5(e)(3). A child who immigrated at the same time as his or her parent or within the following 90 days may be included in his or her parent's I-751. If a child needs to file his or her own I-751, he or she may not seek the waiver based solely on abuse to his or her parent. 34 8 CFR §216.5(e)(3)(I). The list is non-exhaustive, and other acts of physical abuse or cruelty against a spouse or child may also qualify. 8 CFR §§204.2(c)(i)(6), 204.2(e)(2)(iv). 35 The egg shell theory is basically that you take your victim as you find him. In this application, an individual with a particularly fragile psyche may experience extreme mental cruelty from certain acts that would not rise to that same level with other, more mentally stable individuals. 36 8 CFR §216.5(e)(3)(iii)-(iv). 37 INA §319(a). 38 INA §216(c)(4)(A). 39 Id. 40 INA §216(c)(4). See In re Singh, 24 I&N Dec. (BIA 2007)( hardships arising after the 2-year conditional residency period cannot be considered). 33
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BURDEN OF PROOF, DISCRETIONARY BASIS OF WAIVERS, AND REVIEWABILITY MAJOR DIFFERENCES BETWEEN I-751 JOINT FILINGS & WAIVERS Jointly Filed I-751's
Waivers of Joint Filing Requirement
Burden of Proof
If timely filed, signed by both spouses, and both appear at interview - burden on USCIS to show that marriage was entered into for the purpose of obtaining an immigration benefit, or fee paid, or marriage judicially terminated or annulled.
Burden on Conditional Resident to show he meets the requirements (good faith, hardship, abuse).
Discretion
Must be approved if meets the requirements.
Even if Conditional Resident proves the requirements, grant is discretionary.
Reviewable
Both can be reviewed by IJ in proceedings and appealed to BIA Reviewable in Circuit Court in Petition for Review
Not reviewable in Circuit Court because Court lacks jurisdiction to review discretionary decisions.
Burden of Proof. Unlike the burden of proof when submitting a jointly filed I-751 petition, 41 the burden of proof rests on the conditional resident when filing for a waiver of that requirement. 42 Review of USCIS Decision. As with a denial on a jointly filed I-751, denials of waiver applications may also be reviewed by an immigration judge43 , although an immigration judge has no jurisdiction to accept an I751 that has not already been filed with USCIS. 44 The regulations suggest that the Service must issue a Notice to Appear if the petition is denied, 45 but in practice, if this does not happen, the conditional resident may have to file a new I-751 to obtain proof of continuing residency. 46 A conditional resident who has been put into removal proceedings has the right to have evidence of lawful status while the proceedings are pending. 47 Review of IJ Decision. Denials from immigration judges may be appealed to the Board of Immigration Appeals within 30 days of the decision. However, because a decision on a waiver of the joint filing require-
41
When an I-751 is timely filed, signed by both spouses, and both spouses appear for the scheduled interview, the USCIS has the burden of proving that the marriage was entered into for the purposes of obtaining an immigration benefit or a fee or other consideration was given in return for filing the marriage-based visa petition or the marriage has been judicially terminated or annulled. 8 CFR §216.3(a),8 CFR §216.4(b)(3). 42 8 CFR §216.5(a)(1),(e)(1). 43 Review of I-751 denials are de novo. 44 8 CFR §§216.4(a)(3) and 261.5(c). 45 8 CFR §§216.4(d)(2) and 216.5(f). 46 Legacy Immigration and Naturalization Service (INS) and the Board of Immigration Appeals (BIA) recognize that a conditional resident (CR) whose status has been terminated maintains lawful status until entry of a final administrative order upholding DHS' denial of the I-751. In re Stowers, 22 I&N Dec. 605, 612 n. 10 (BIA 1999). However, in 2008, the U.S. Court of Appeals for the Second Circuit held that if a joint I-751 petition has been denied and conditional residence terminated, the alien spouse is foreclosed from filing a new I-751 because he or she is no longer a permanent resident. Severino v. Mukasey, 549 F.3d 79 (2d Cir. 2008). To date, no other circuit court has followed this rationale. 47 USCIS Memorandum, W. Yates, “Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage” (April 10, 2003), published on AILA InfoNet at Doc. No. 03050643 (posted May 6, 2003). Copyright © 2010 American Immigration Lawyers Association
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ment is discretionary, 48 review in federal court would be limited to constitutional claims and questions of statutory interpretation. 49 Timing of filing. Unlike a joint petition, a petition for a waiver of the filing requirement may be filed at any time, and is not required to file within the 90-day window required of joint filers. 50 The conditional resident may even file an I-751 waiver if the USCIS has already terminated his or her status. 51
48
INA §216(c)(4). See also Suvorov v. Gonzales, 441 F.3d 618 (8th Cir. 2006) (grant of waiver is discretionary); UrenaTavarez v. Ashcroft, 367 F.3d 154 (3d Cir. 2004) (same). If a waiver is denied on a discretionary basis, federal court review is probably precluded. 49 INA §242(b)(2)(D). 50 In re Stowers, 22 I&N Dec. 605 (BIA 1999). 51 Id., see also Adjudicator’s Field Manual, 25.1(c)(2). Copyright © 2010 American Immigration Lawyers Association
Heavy Lifting in I-751 Conditional Residence Cases March 8, 2011 Resources USCIS Memo on Additions to AFM on the Adjudication of Form I-751 http://www.aila.org/content/default.aspx?docid=30488
Neufeld Memo on Adjudication of I-751 for Legally Separated Couple, Where Marriage is Not Yet Terminated http://www.aila.org/content/default.aspx?docid=29586
AILA/SCOPS Practice Pointer: I-751 Filing and Adjudicating Procedures for Parties Separated but Not Yet Divorced http://www.aila.org/content/default.aspx?docid=30167
2011 AILA Teleconference/Web Conference © 2011 American Immigration Lawyers Association
