Conditional Residency: Part II
By: Samuel N Omwenga, Esq.
This is the second of two articles designed to provide general information on becoming a United States conditional permanent resident (“CR”) through marriage and how and when to remove the condition on the residency. The first article examined how CR status is attained and how it may be terminated. This article will discuss joint filing to remove the condition and how and when to apply for a waiver of such joint filing.
Who Should Jointly File The I-751
If the marriage between the CR and the spouse who originally petitioned for her (“the petitioning spouse”) is still intact and healthy, the couple will file the petition to remove the conditions on her residence jointly.
On the other hand, however, if the marriage is no longer intact, as in the case where the couple is experiencing marital discord or may have even physically, although not legally, separated, a joint filing is inappropriate and the conditional resident spouse in that situation is better off filing an application requesting a waiver of the joint application requirement. A CR spouse in this situation should also attend any scheduled interview alone and attempt to make his or her case—with the help of an immigration attorney, hopefully—that the condition should be removed without the joint application with the petitioning spouse. Please note, however, that there might be circumstances where spouses experiencing marital problems may nonetheless pursue the joint application but this should be rare occasions.
The INS has stated that even where the marriage is no longer viable and is additionally “without hope of revival,” it may approve a jointly filed I-751 petition if it is convinced that the marriage was entered into in good faith. In addition, the Board of Immigration Appeals (BIA) found that “if the petitioning spouse is willing to proceed with a joint petition despite ongoing marital difficulties, the parties may do so.” Filing jointly presents the CR with several advantages that do not attach if she files the joint petition on her own: approval or denial is not discretionary; the INS is supposed to adjudicate the petition within a certain time frame; enhanced constitutional benefits attach; and, if it terminates the CR’s status, the INS specifically bears the initial burden of proving that the affected party is deportable as such. Therefore, couples whose marriage is technically though not legally dead should consider filing the joint petition if they can scrupulously document their marriage's good faith.
Who Should File The I-751 Waiver
The scenarios in which the CR spouse will file alone are numerous: if the petitioner has died; if the parties have divorced or have obtained an annulment; if the petitioning spouse will not cooperate in the filing of the joint petition even though the couple is still together; if the parties have physically separated and are contemplating filing for or have already filed for divorce and the petitioner will not sign the joint petition; if the petitioner spouse, after jointly filing the petition with the CR, at any time submits a statement in writing to the INS withdrawing his support of the petition; or if the CR spouse has left the marriage due to abuse against her or her children or for any other reason, and does not want to have contact with the petitioner. In any of these situations, the CR spouse will complete the portion of the I-751 petition that requests a waiver of the joint filing requirement (“I-751 waiver). A CR child who gained admission as an immigrant more than ninety days after his parent's admission cannot be included in his parent's petition to remove the condition on her status and must file on his own behalf.
When To File The I-751 Waiver
While regulations clearly require that that persons filing the joint I-751 petition must file the petition within the ninety-day period immediately preceding the second anniversary of the CR's admission as an immigrant, they do not state when one may file an I-751 waiver application. While a CR should, whenever possible, file her I-751 waiver petition during that ninety day window, the INS long ago stated that the CR may file before that deadline if she qualifies to do so and the BIA recently agreed to this proposition. Therefore if, prior to the ninety-day filing window, a CR spouse fits into any of the categories for which the I-751 waiver is appropriate, she may file the petition early.
Another issue that arises is whether the CR can file the I-751 late – after her CR status has already expired. The answer to this question is not readily found in the statutes but judges have made rulings that clearly establish that a CR who qualifies to file the I-751 waiver based on any of the “good faith,” “extreme hardship,” or “battered spouse” grounds, discussed more fully below, may file the I-751 waiver at any time that she qualifies for the waiver. Therefore, a former CR who fails to file the petition to remove the conditions on her residency until more than a year after her CR status ended because she was waiting for her divorce to be finalized is eligible to late-file the I-751 waiver, if she will be applying on the good faith ground.
Whenever possible, however, the CR should try to file the I-751 waiver before her status expires. For example, if the parties have filed for divorce but the divorce is not yet final, the CR should nonetheless submit her good faith waiver petition before the filing deadline. The INS should postpone adjudication to allow the divorce process to run its course and to permit the CR to present the final divorce decree or other proof of the marriage's termination. Late filing of the I-751 waiver is also appropriate if the CR originally filed a joint petition, but the petitioning spouse later refuses to cooperate in the process, or if the INS denies the joint petition. Similarly, a CR who files for the waiver on one ground but is denied, may late file if she subsequently qualifies for the I-751 waiver on another ground.
Grounds For The I-751 Waiver
A CR who cannot file the I-751 petition to remove the conditional nature of her residency jointly with the petitioning spouse must file alone. The INS may waive the requirement that a CR file jointly in four circumstances: (1) her petitioning spouse has died; (2) she would suffer extreme hardship if she were deported; (3) notwithstanding the breakdown of her marriage, she entered it in good faith and not with the primary intention of obtaining immigration benefits; or (4) notwithstanding her good faith, she or her child were the victims of abuse at the hands of the petitioning spouse. The three grounds for a waiver are separate and independent. The CR need only prevail on one of the waiver grounds in order to have the condition removed so that she can attain full permanent residency; however, if applicable, she may apply for the waiver on more than one basis.
If the CR resident files for the waiver on one ground, and due to changed circumstances, later becomes eligible for the waiver on an additional ground, the CR should immediately amend her application to alert the INS that she is also seeking the waiver based on the additional ground. The CR can accomplish this either by mailing an amended I-751 petition and supplemental supporting documentation to the appropriate INS regional service center, or, if she has already been scheduled for an I-751 interview, by submitting the amended I-751 and supporting documents to the INS at the outset of the interview. She may do this even if the INS has already denied her original waiver petition and she is in removal proceedings. The immigration judge should continue the proceedings accordingly.
Death Of Petitioning Spouse
If the petitioning spouse died within the first two years of the CR's admission to the United States, the CR spouse must file the petition for the waiver of the joint filing requirement. Ordinarily, the surviving spouse will only have to present minimal evidence of the marriage's good faith, unless the INS suspects that the CR spouse married the petitioning spouse with the primary intention of obtaining immigration benefits
Good Faith Marriage
Where the qualifying marriage has ended in divorce or annulment during the two year conditional residency period, the CR may apply for a waiver of the joint filing requirement based on the parties' good faith when they entered into the marriage. As long as the complaint has already been filed in the appropriate court, the CR may file the I-751 without waiting to receive the final decree of divorce or annulment. The INS should postpone its adjudication of the petition until she is able to submit proof of the marriage's final legal dissolution. However, the waiver is not available to a CR whose marriage has broken down but which has not and will not be legally terminated in the foreseeable future. For example, where the couple has physically separated, but is not pursuing divorce or annulment due to religious or other beliefs, the CR may only apply for the extreme hardship waiver or for the battered spouse or child waiver.
The standard to qualify for approval of the good faith waiver is the same standard which applies to the approval of the initial marriage-based visa petition; the CR must prove that the parties had the bona fide intent to join their lives together at the time they entered into the marriage. The INS will deny the petition if it believes that the marriage occurred for the primary purpose of obtaining the CR's status as an immigrant in the United States. The INS can examine the conduct of the couple both before and during the marriage to aid in its determination of the parties' intentions at the time they got married.
If the CR and the petitioning spouse have not and will not be filing for divorce, and if the CR was not in an abusive relationship, the CR's only option may be the waiver of the joint filing requirement based on extreme hardship. The hardship that would result from the CR's removal from the U.S. need not be to her alone, but could also be the repercussions to her child or even to a subsequent spouse. In addition, a CR child may file his own waiver application based on extreme hardship, if he has independent grounds to do so. For example, in one case, the INS granted a waiver based on extreme hardship to a child of a terminated CR spouse where the child was a stellar college student, but would no longer be able to attend her university if she lost her lawful resident status.
The CR's task when establishing extreme hardship is onerous: the alleged hardship must be based on “factors which arose subsequent to the alien's entry as a conditional permanent resident.” One court has found that only hardship which arises during the two years of conditional residency, rather than any hardship arising after that period, can be considered. In addition, since it is assumed that removal always causes hardship, the CR must show that the hardship that she or her immediate family member will suffer is truly extreme.
Although the INA and the regulations do not define what level of hardship will be considered extreme, the term has been defined in other contexts. The hardship must be significant actual or potential injury, and cannot be merely the expected results of any removal, such as separation from loved ones. An immigration lawyer can discuss in detail, factors that may be considered in determining whether one has met this extreme hardship requirement.
Battered Spouse Or Child
Congress added this waiver to the INA in 1990. This waiver allows the CR to have the conditions on her residency removed if she can show that she married the petitioning spouse in good faith, but that her spouse either physically abused her or her child, or subjected them to extreme mental cruelty. The implementing regulations define the contemplated violence as including, but not being limited to: being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor) or forced prostitution shall be considered acts of violence. The CR need not have terminated the marriage in order to qualify for this waiver, and in fact may still be living with the abusive spouse.
This is the last of two articles discussing conditional permanent residency. If you have specific questions about the issues discussed in the articles or need additional information, please contact our office.
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