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    Business Culture Health Politics Education IMMIGRATION Women's

    Conditional Permanent Residency

    By: Samuel N Omwenga, Esq.

    This is one of two articles designed to provide general information on becoming a United States conditional permanent resident (“CR”) through marriage. By way of general background, Congress passed and the president signed into law the Immigration Marriage Fraud Amendments of 1986 (“IMFA), which created an entirely new class of permanent residency that accords the beneficiary only conditional residency.

    As is the case with most immigration laws, flaws quickly emerged with the IMFA's provisions and, to ameliorate these problems, Congress later modified IMFA with the passage of the Immigration Act of 1990 (IMMACT90). These amendments permitted a CR who was not the moving party in divorce proceedings to nonetheless apply to move from conditional to permanent residency if she could establish that she married in good faith. In addition, IMMACT90 created an avenue through which spouses and children who were victims of domestic violence at the hands of the person through whom they obtained conditional residency could apply to remove the conditions on their residency without the abuser's acquiescence.

    A spouse who immigrates to the United States based on his or her marriage to a United States citizen or lawful permanent resident will be granted conditional residence if, at the time of admission as an immigrant, the marriage is less than two years old. If the marriage is less than two years old when the INS either admits the person to the United States or approves his or her application for adjustment of status, the immigrant will receive conditional residence. Conversely, if the marriage has passed its second anniversary, the immigrating spouse will obtain permanent resident status. As a practical matter, only immediate relative spouses of United States citizens are subject to the conditional resident provisions. Due to current backlogs, spouses of lawful permanent residents wait far longer than two years after the filing of the marriage petition for available immigrant visas. Therefore, their marriages are more than two years old by the time they enter the United States, and conditional residence does not apply to them.

    The INS strictly observes the two year limit, with the resident's date of admission controlling. Therefore, if the marriage is less than two years old at the time the spouse applies for his or her immigrant visa at the appropriate United States consulate, the consular officer will approve her for CR status. But if the beneficiary celebrates his or her second wedding anniversary before arriving at a United States port of entry, he or she will enter as a full permanent resident. Conversely, if the immigrant gains admission to the United States even one day prior to the marriage's second anniversary, he or she will be a conditional, rather than a full, permanent resident.

    Conditional residency applies only where marriage to a United States citizen or lawful permanent resident is the premise for the underlying visa petition. Therefore, a person who immigrates derivatively as the spouse of the principal immigrant will not be subject to the conditional resident provisions of the INA. For example, a noncitizen immigrates in one of the employment—based preference categories. That person's spouse and qualifying children would enter the United States as full permanent residents, even if the marriage between the spouse and the principal immigrant was less than two years old at the time of admission.

    Removal Of The Conditions On Residency

    During the first two years of conditional residency, the INS may move to terminate the legal status of any person admitted as a conditional resident, if it determines that the underlying marriage has legally ended or was fraudulent from the outset. On the other hand, a conditional permanent resident couple can file, ninety days before their second marriage, an application to remove the conditional residency, if the marriage is still intact. If this is done, the INS may then remove the conditions on the applicant’s immigration status so that he or she assumes full permanent residency.

    Conversely, if by that time the marriage has ended in annulment or divorce or the INS believes that the marriage was fraudulent from its inception, the INS may terminate the CR's legal status in the United States. Additionally, if the CR fails to comply with the proper procedures to remove the conditions on her residency despite the fact that her marriage is still intact, the INS will terminate her legal status. However, if the CR's relationship with his or her petitioning spouse has failed during the two year conditional period, it is possible to petition the INS to grant full permanent residency if certain conditions are met. The following is a brief summary of the different scenarios under which conditional residency may be terminated:

    Termination By INS During Conditional Period

    As a general rule, conditional residence lasts for two years. However, the INS can terminate the CR's residency in the United States before the expiration of the two year conditional period if it finds any of the following: that the marriage upon which the status was based has ended in annulment or divorce; that the marriage was entered into in order to obtain the CR's immigrant status; or that compensation was given to induce the filing of the visa petition which qualified the CR to immigrate. The INS must notify the CR of its intention to terminate her status and of the evidence in her file, and provide her with an opportunity to rebut that evidence47 before making a final determination. If the INS ultimately finds against the CR, it must inform her in writing of the grounds for termination. The INS may then issue a Notice to Appear (NTA) to initiate removal proceedings against her. If the INS failed to provide the conditional resident with proper notice and an opportunity to rebut, she should make an application to terminate the ensuing removal proceedings.

    The CR may not appeal the INS's decision to terminate her status but will be able to seek review of that action in removal proceedings. In addition, if the INS terminates a CR's status, she may still file a petition for a waiver, as will be discussed in our next article, if she is eligible and she did not already do so during the INS's inquiry into the qualifying marriage. Even if the INS has already initiated removal proceedings against the CR as a result of its termination of her status, the INS must accept her waiver petition or timely filed motion to reopen or reconsider, if the waiver request is grounded on appropriate grounds. If the applicant is prima facie eligible for the waiver requested, the court should postpone court proceedings to give the INS time to rule on the request.

    CR's Affirmative Petition To Remove The Conditions

    If the INS does not move to prematurely terminate the legal status of a CR, then during the ninety day period immediately preceding the second anniversary of admission to the United States as an immigrant, the CR must file a petition (INS Form I-751, Petition to Remove the Conditions on Residence) requesting removal of the conditions from her residency so that her resident status becomes permanent. The INS calculates the two year residency anniversary strictly chronologically. Absences from the United States do not affect the countdown of the two year period. The INS must inform the immigrating spouse of this obligation when it admits her as a CR and is supposed to attempt to notify her again near the beginning of the ninety day filing window but there is nothing to be gained if the INS fails to do this, meaning the CR must still file the petition.

    Within the ninety-day filing window, if the CR and her petitioning spouse are not divorced or have not annulled their marriage, they may submit the I-751 petition to the INS jointly. If the CR spouse is unable to file a joint petition to remove the conditional basis of her residency, either because the petitioning spouse cannot or will not participate in the process, she will file the petition alone and request a waiver of the joint filing requirement as discussed further, below. If the CR files the petition alone, she may do so even before or after the usual ninety-day filing window, as is discussed later in this Briefing. However, if feasible, she should submit the I-751 waiver petition no later than the usual filing window.

    Whether filing jointly or separately, the CR must submit the I-751petition even if she is outside of the United States. He or she may get a copy of the I-751 petition form from the INS overseas office or from the United States consulate in the country where they reside. One does not need to be physically present in the United States at the time of filing of the petition, as long as he or she returns to the United States to attend the INS interview, if one is scheduled. In any case, the CR should plan to return to the United States within 180 days after she files the I-751 petition.

    CR children also must file for the removal of the condition on their residency within the ninety days immediately preceding the second anniversary of their admission as immigrants. A CR child who enters the United States as an immigrant within ninety days of his CR parent is considered to have entered concurrently with his parent. In that case, his parents' joint petition may include him; he need not file a separate petition, even if he is over twenty-one and no longer meets the INA's definition of “child.” As with a CR spouse, the CR child who will be filing the I-751 waiver petition alone should do so within the ordinary ninety day filing window immediately preceding the second anniversary of his residency, but may file the I-751 waiver petition before or after the normal filing window if the reason for the waiver falls into one of the three categories provided by statute.

    Termination For Failure To Timely File

    The CR's legal status in the United States automatically terminates dating back to the date of the second anniversary of her admission as an immigrant if she fails to file INS form I-751 (“Petition to Remove the Conditions of Residence”) by that date. The INS may accept late filings for good cause if the CR submits a written explanation for the delay. Since acceptance is entirely discretionary and is thus problematic, as a practical matter, late filing should be avoided whenever possible. As a practical matter however, the INS routinely accepts I-751 petitions that are received within the first month after the filing deadline if the couple provides a reasonable explanation. When the INS accepts a late-filed application, the CR's legal status, which ended on the second anniversary of her residency, will be automatically restored. However, the INS can issue a Notice to Appear (NTA) to initiate removal proceedings against any CR who fails to meet the filing deadline. If a long time has passed since the filing deadline, the affected party should consult an immigration lawyer for advice on how to best proceed.

    Termination For Failure To Attend INS Interview

    If the CR files the I-751 jointly with the petitioner spouse, they must both attend the INS interview, if the INS schedules one. The INS is supposed to notify the couple and hold the interview within ninety days of receiving the I-751. However, that regulation is largely ignored, and most INS districts have lengthy backlogs in scheduling interviews. The INS takes the position that the regulation is not mandatory and that the CR will not suffer from any delay in scheduling the interview. As a practical matter, the INS adjudicates many joint petitions without conducting an interview, if the I-751 is accompanied by ample evidence of the marriage's good faith.

    A CR who files the I-751 waiver alone must also attend any INS interview. The INS does conduct interviews in most I-751 waiver cases. Failure of the CR, or in the case of a jointly filed petition, of the CR or the petitioning spouse to attend the INS interview results in termination of the CR's status dating back to the second anniversary of her admission as an immigrant. In certain cases, the CR who jointly filed the I-751 may request in advance that the INS waive the petitioner spouse's presence at the interview, if the reason is legitimate and well-documented, such as that spouse's illness that requires long-term institutional care, or service abroad in the United States military.

    A CR is obligated to attend the interview even if she or the couple is abroad at the time that the INS schedules the interview. If she cannot return from abroad in time for the interview, she should request as far in advance as possible that the interview be rescheduled. If the INS terminates the CR's status because either she or her spouse failed to attend a scheduled interview, the INS may initiate removal proceedings against her. To avoid this harsh result, the CR should submit, prior to the interview date, a written request that the INS reschedule the interview. As a practical matter, generally the INS will give a new interview date if the reason appears legitimate, even if the CR or the petitioner spouse did not ask in advance that the interview be rescheduled as long as this request is made on the day of or as soon as possible after the interview.

    The BIA has held that if, during the interview regarding a jointly filed I-751 petition, the petitioning spouse withdraws his support for the petition, the CR will be placed in the same position as if the petitioning spouse had failed to appear at the interview. Should this occur, the CR's advocate must file—before the end of the interview, if possible, or as soon as practicable thereafter—an I-751 waiver petition on any applicable ground in order to preserve the CR's rights. Filing the I-751 waiver immediately will forestall initiation of removal proceedings, so that the INS can adjudicate the waiver petition. If the INS has already filed the NTA with the immigration court so that jurisdiction has passed to the court, the advocate should take appropriate steps to terminate the proceedings.

    The next article on this issue will discuss in more detail who should file the joint petition or a waiver, when and on what grounds.

    © Law Office of Samuel N. Omwenga