Conditional Permanent Resident.The Marriage Fraud Amendments of 1986 ("IMFA") were Enacted in Response to a growing concern about Aliens seeking Permanent Residence in the United States on the basis of Marriage to a United States Citizen or Lawful Permanent Resident when either the Alien acting alone, or the Alien and his or her Spouse acting in concert, married for the sole purpose of obtaining Permanent Residence ( Green Card). Congress was particularly moved by the testimony of numerous Citizens whose Alien Spouses had left them shortly after obtaining Lawful Permanent Residence Status.
In response to these concerns, Congress passed IMFA, which added section 216 of the Immigration and Nationality Act. Section 216 created a Conditional Residence requirement for Aliens who acquire Permanent Residence based on recent Marriages. The condition being that persons subject to the provisions of IMFA were required to file a Joint petition with United States Citizenship and Immigration Service (USCIS) two years after obtaining Permanent Residence (Green Card) for removal of the conditional basis of the Residence. Section 216 also includes a waiver of the Joint Filing requirement.
The conditional Residence provisions of section 216 apply to:
- Any Alien who, based upon a Marriage to either a Citizen of the United States or a Lawful Permanent Resident of the United States, obtains Permanent Residence within two years of such Marriage (i.e., as a Spousal Immediate Relative or second preference classification); and
- Any child of such Alien who also obtains Lawful Permanent Residence (Green Card) through his or her parent’s Marriage within 2 years of the Marriage .
The Alien who is subject to the IMFA conditions is known as a "Conditional Permanent Resident," while the United States Citizen Spouse or Lawful Permanent Resident Spouse who had filed the I-130 petition on behalf of such Alien is known as the "Petitioning Spouse."
The Provisions of Section 216 of the Immigration and Nationality Act do not Apply to:
- An Alien who obtains Permanent Residence through a Marriage which is more than two years old at the time of admission or adjustment.
- An Alien who obtains Permanent Residence on a basis other than Marriage (e.g., a woman who adjusts through an employment-based petition, even if she is married to a Citizen at the time);
- An Alien who (regardless of the age of the Marriage at the time) obtains Permanent Residence as an accompanying or following to join dependent of an Alien who obtains Residence under:
- A special immigrant classification;
- A refugee or Asylee classification;
- A preference classification other than second preference;
- Any other provision of the Immigration and Nationality Act, or any other law, which allows dependents to accompany or follow to join a principal Alien.
Filing for Removal of Conditional Basis of Residence
There are two methods through which the conditional basis of residence may be removed:
Joint Petition
Within 90-day period immediately preceding the second anniversary date on which the Alien obtained conditional Permanent Residence, the Alien and the petitioning Spouse must file a Petition to Remove Conditions on Residence using (Form I-751) with United States Citizen and Immigration Services. Normally, a conditional Resident child is included in the joint petition filed by his or her parent and step-parent.
A Form I-751 being filed as a joint petition shall be accompanied by evidence that the Marriage was not entered into for the purpose of evading the Immigration laws of the United States. Such evidence may include:
- Documentation showing joint ownership of property;
- Lease showing joint tenancy of a common residence;
- Documentation showing commingling of financial resources;
- Birth certificates of children born to the Marriage ;
- Affidavits of third parties having knowledge of the bona fides of the marital relationship.
- Other documentation establishing that the Marriage was not entered into in order to evade the Immigration laws of the United States.
Waiver of Joint Filing
The Conditional Permanent Resident, acting alone, may apply using Form I-751 for a waiver of the requirement to file a joint petition to remove the conditional basis of Residence. The waiver may be sought if the joint petition cannot be filed due to:
- The termination of the Marriage through annulment, divorce, or the death of the petitioning Spouse;
- The refusal of the petitioning Spouse to join in the filing of the petition;
- A conditional Resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);
- The conditional Resident being unable or unwilling to file the joint petition because the petitioning Spouse is an abusive Spouse or parent; or
- Any other reason which is provided for in the Act.
A Form I-751 being filed as a waiver application should be accompanied by:
Evidence to establish the facts of the case on which the Alien is seeking the waiver; and
Evidence that the Marriage was not entered into for the purpose of evading the Immigration laws of the United States.
According to the provision of the law,failure to file for the removal of Conditional basis of Permanent Resident within the 90-day period immediately preceding the second anniversary of the date on which the Alien obtained lawful Permanent Residence (Green Card) on a conditional basis shall result in the automatic termination of the Alien's Permanent Residence status and the initiation of proceedings to remove the Alien from the United States.
Form I-751 may be filed after the expiration of the 90-day period only if the Alien establishes to the satisfaction of United States Citizenship and Immigration Services (USCIS) , that there was good cause for the failure to file within the required time period.
Inability of Child to be Included in Joint Petition
The Immigration Regulations allow a conditional Resident child who is unable to be included in his/her parents’ joint petition to file an separate Form I-751.
Circumstances under which this situation might arise include:
- A child whose conditional Resident parent has died;
- A child who entered the United States more than 90 days after his conditional Resident parent and therefore does not have sufficient residence in the United States to qualify for removal of conditions on the joint petition and
- Any other circumstances whereby in the determination of United States Citizenship and Immigration Services (USCIS) the child is prevented from being included in the joint petition of his or her parent and step-parent through no fault of the child or his or her parents.
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A Waiver Application can be filed under one of three circumstances:
Extreme Hardship
The waiver applicant must establish that extreme hardship would result if he or she is removed from the United States. Extreme hardship which would result from deportation (presumably to the Alien’s home country) is pertinent. However, in some situations hardship already experienced can have a bearing on hardship which an Alien might expect to experience if he or she is removed from the Unites States
The applicant bears the burden of proof to establish eligibility for the benefit sought.
Good Faith, Not at Fault
Despite the best intentions, Marriages do not always work out, and sometimes even bona fide Marriages fall apart in less than 2 years. IMFA was not meant to be a tool to be used against unlucky Marriages; it was meant to be a tool against Marriage fraud. Accordingly, IMFA provides for a waiver if the Alien can establish that he or she entered the Marriage in good faith and he or she was not at fault in failing to meet the IMFA requirements.
In determining good faith, it is usually helpful to look at the actions of the parties following Immigration to the United States or grant of adjustment of status . The same clues which can be useful in an on going Marriage (i.e did they intend to establish a life together, was there commingling of asset and resources ) .
An Alien whose conditional Resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the "good faith" exception because the requirement of the law is that the Marriage has to be terminated first before making the application for a waiver of the joint filing requirement .
If an Alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the Immigration judgeto allow for the finalization of the divorce or annulment proceedings.
Battering or Extreme Cruelty
Police reports and hospital records can be key documents in establishing that battering or extreme cruelty existed, but not all cases of abuse contain these items. Other less traditional forms of documentation may be used.
Immigration Interview
Unless waived, an interview shall be conducted by an Immigration adjudicator or other officer at the local office. An interview based on a joint petition is used to determine the bona fides of the Marriage . As such, it is quite similar to an interview conducted in relation to a ( Marriage -based) adjustment application.
Denial of Petition to Remove Conditional Residence
There is no appeal from the denial of a Form I-751 filed as either a joint petition or a waiver application. Instead, the Alien is placed in removal proceedings where he or she may renew the petition or application before the Immigration judge. An approval of a Form I-751 joint petition or waiver application also applies to any conditional Resident children who are included on the form and are eligible for removal of conditions. (But not to a child who has not acquired at least 21 months of residence; that child would have to file a separate Form I-751 at a later date under the regulatory waiver provision
Naturalization Issues Relating to Conditional Residence
Time spent as a conditional Resident counts towards the three years/five years requirement for Naturalization.
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