Law Office of Osas Iyamu

"It takes an Immigrant to understand the Immigration needs of another Immigrant"

                              CONDITIONAL RESIDENT
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(a) General .
The Marriage Fraud Amendments of 1986 ("IMFA") were enacted in response to a growing concern about aliens seeking permanent residence in the U.S. on the basis of marriage to a citizen or resident when either the alien acting alone, or the alien and his or her reputed spouse acting in concert, married for the sole purpose of obtaining permanent residence. Congress was particularly moved by the testimony of numerous citizens whose alien spouses had left them shortly after obtaining residence, as well as the testimony of USCIS representatives concerned with "marriage for hire" schemes. Congress also acknowledged the inherent difficulties faced by USCIS in determining whether the marriage is fraudulent and whether the alien intended to leave the marital union once lawful permanent residence was granted.
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 petition with USCIS two years after obtaining residence for removal of the conditional basis of the residence. Failure to do so, or denial of the removal petition, would result in the alien losing residence status and being removed from the U.S. as a deportable alien. Section 216 also includes a waiver provision because it recognizes that under certain circumstances (e.g., if the marriage had dissolved through no fault of the alien), the alien’s loss of residence and deportation from the U.S. would be inappropriate.
The conditional residence provisions of section 216 apply to: •     Any alien who, based upon a marriage to either a citizen of the U.S. or a lawful permanent resident of the U.S., 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 permanent residence through his or her parent’s marriage within 2 years of the marriage.
Note: The alien who is subject to the IMFA conditions is known as a "conditional permanent resident," while the citizen or LPR who had filed the I-130 petition on behalf of such alien is known as the "petitioning spouse."
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The section 216 provisions 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.
Note: It is not unusual for an alien to be issued a conditional resident immigrant visa by a consular officer shortly before the second anniversary, but to apply for admission after that second anniversary. Likewise, an applicant for adjustment might file a Form I-485 (or even be interviewed regarding such application) prior to the second anniversary, but not be granted adjustment until after that second anniversary. In such cases, the alien should be admitted, or adjusted, without conditions. 8 CFR 235.11(b) gives inspectors at the point of entry authority to amend the visa classification on an immigrant visa in such situations).
(b) Notification Requirements .
The Marriage Fraud Amendments of 1986 require that a conditional permanent resident be notified of his or her obligations to remove the conditions within ninety days immediately preceding the second anniversary of the date the alien was granted status, and will inform the alien that failure to apply for removal of the conditions will result in automatic termination of the alien's lawful status in the U.S.
Failure to provide such notification does not relieve the alien and the petitioning spouse of the requirement to file a joint petition within 90 days preceding the second anniversary date of the alien's conditional status.
(c) Filing for Removal of Conditions .
There are two methods through which the conditional basis of residence may be removed:

(1) Joint Petition .                                                                                                                        Back to Top
Within the 90-day period immediately preceding the second anniversary date on which the alien obtained permanent residence, the alien and the petitioning spouse must file a Petition to Remove Conditions on Residence (Form I-751) with the Service Center having jurisdiction over the alien's place of residence. Normally, a conditional resident child is included in the joint petition filed by his or her parent and step-parent. The joint petition must be filed within this 90-day window. If either the alien or the petitioning spouse (or both) is outside the U.S. on U.S. government orders, the filing window does not commence until the person(s) on orders returns to the U.S.
(2) Waiver .
The conditional permanent resident, acting alone, may apply (also on Form I-751) for a waiver of the requirement to file the joint petition. The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). 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.
(d) Ineligibility for Adjustment of Status .
Under section 245(d) of the Act, an alien who is a permanent resident on a conditional basis under section 216 of the Act is not eligible for adjustment of status under section 245(a) of the Act.
(e) Documentation .
(1) Joint Petition .
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 U.S. 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.
Note: the affiant must be available to appear at the joint petitioners’ interview if required); or
•     Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the U.S.
(2) Waiver .                                                                                                                           Back to Top
A Form I-751 being filed as a waiver application shall 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 U.S., as described in paragraph (1), if the marriage was not entered into for such purposes.
(f) Termination of Status for Failure to File .
Failure to properly file Form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence 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 U.S. Form I-751 may be filed after the expiration of the 90-day period only if the alien establishes to the satisfaction of USCIS, in writing, that there was good cause for the failure to file within the required time period.
(g) Inability of Child to Be Included in Joint Petition .
As a matter of administrative convenience, the 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 U.S. more than 90 days after his conditional resident parent and therefore does not have sufficient residence in the U.S. to qualify for removal of conditions on the joint petition and
•     Any other circumstances whereby in the determination of 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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(h) Waiver of Joint Filing .
These are cases where the petitioner and the spouse do not file a joint petition because the petitioner and spouse are divorced, or the petitioner (child of the conditional spouse) could not enter or follow to join the conditional spouse. The documentation to be submitted, and the factors to be determined in the adjudication process, depends on the type of waiver being sought. Section216(c)(4) of the Act allows an alien to file a waiver application under one (or more) of three circumstances:
(1) Extreme hardship.
section 216(c)(4)(A) provides that the Attorney General, in the Attorney General's discretion, may remove the conditional basis of the permanent resident status for an alien who fails to meet the joint filing requirements (1) if the alien demonstrates that- (A) extreme hardship would result if such alien is removed
(2) Good faith and not at fault.
section 216(c)(4)(B) provides that the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the joint filing requirements ), or
(3) Battering or extreme cruelty.
section 216(c)(4)(C)) provides that the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the joint filing requirements.
(1) Extreme Hardship .
The waiver applicant must establish that extreme hardship would result if he or she is removed from the U.S.

•     whether the alien has already suffered hardship during or prior to his or her status as a conditional resident is irrelevant. Only extreme hardship which would result from deportation (presumably to the alien’s home country) is pertinent. The statute is prospective, not retrospective, in this regard. 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. For example, in some countries, a woman who has been divorced may suffer extreme isolation ("shunning") in her home country or culture which rises to the level of persecution.
•     Because the adjudication of a waiver application is a matter of discretion, factors which are not directly related to the marriage fraud provisions may be taken into account. As with any adjudication proceeding, the applicant bears the burden of proof to establish eligibility for the benefit sought.
(2) 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 or unlikely marriages; it was meant to be a tool against 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.
•     It does not matter if the conditional resident’s spouse entered the marriage in good faith, only the intent of the conditional resident him or herself is relevant. Interviewing the conditional resident’s former spouse may provide relevant and valuable information on the alien’s intent, or it may only result in a spiteful information
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•     In determining good faith, it is usually helpful to look at the actions of the parties following immigration to the U.S.or grant of adjustment of status . The same clues which can be useful in an ongoing marriage (i.e did they intend to establish a life together, was there commingling of asset and resources )
•     The statute requires that the alien establish that he or she "was not at fault in failing to meet the requirements" for filing a joint petition for removal of conditions. This should not be read as requiring that the alien’s divorce decree finds his or her spouse to have been at fault, nor does it require that the divorce was obtained on a no-fault basis. . Likewise, a divorce decree stating that the alien was "at fault" (with regards to the breakup of the marriage) does not preclude USCIS from independently determining that he or she was not at fault, at least with regard to the requirements of the immigration law.
USCIS will make its own determination on this issue. While the language of the divorce decree may provide useful information on the reasons why the marriage was terminated (and therefore why a joint petition was not possible), and may even significantly increase the alien’s burden of proof, the decision on whether to grant the waiver belongs to USCIS, not to the divorce court judge.
•     The statute uses the phrase "has been terminated" when talking about the marriage. As such, 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. 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 judge to allow for the finalization of the divorce or annulment proceedings.
(3) Battering or Extreme Cruelty .
The original IMFA (as enacted in 1986) did not contain a separate waiver provision for victims of battering or extreme cruelty. Although in most cases, such victims could easily qualify for either of the two waiver provisions, Congress found that there was a need to spell out that victims of such treatment are entitled to special consideration under the law. As a result, section 216 of the Act was amended by section 701 of the Immigration Act of 1990 to add this waiver. It is important that in adjudicatin g such waiver applications INS officers are aware of and in accord with the views of Congress in passing this legislation. :
•     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. USCIS Officers will accept and evaluate other, less traditional, forms of documentation. Conversely, in the worst marriage fraud cases it is not unheard of for evidence of abuse or battering to be fabricated (someone who is willing to commit marriage fraud would not be unwilling to file a false police report).
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(i) Interview at the Local Office .
Unless waived, an interview shall be conducted by an immigration adjudicator or other officer at the district office, files control office or sub office having jurisdiction over the joint petitioners’ residence.
(1) Joint Petition .
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.
There is no discretionary authority to be exercised when adjudicating a joint petition,
(2) Waiver of Joint Petitioning Requirement .
Only under the rarest of circumstances will the interview requirement be waived in the case of an alien seeking a waiver of the filing requirement under section 216(c)(4) of the Act.
Unlike joint petition proceedings, the statute on IMFA waiver proceedings grants the Attorney General discretionary authority. Accordingly, if significant negative factors are discovered during the waiver interview (such as the alien having a criminal record) which outweighs the positive factors, they can be used to deny the waiver application.
(j) Denial..
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 I-751 at a later date under the regulatory waiver provision
(k) Naturalization Issues Relating to Conditional Residence .
Time spent as a conditional resident counts towards the three years/five years requirement for Naturalization.
Note: If the naturalized citizen is the parent of a child who was admitted as a conditional resident based on the parent’s marriage, and that child did not also become a citizen, the child is required to file Form I-751 for removal of conditions.
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