BCIS Disallows Filing Of Waiver Of The Joint Filing Requirement Prior To Final Termination Of Marriage
The new Bureau of Citizenship and Immigration Services (BCIS) within the Department of Homeland Security (DHS) has been issuing several memos to its various personnel advising them to interpret provisions of the Immigration and Nationality Act more restrictively.
A recent memo from William R. Yates, BCIS’ Acting Associate Director, Operations, dated April 10, 2003 (the Memo) indicates that a waiver of the joint filing requirement to remove the conditions on permanent residence may not be filed prior to the final termination of the marriage.
As a background, § 216 of the Immigration and Nationality Act (Act) imposes an initial 2-year period of conditional residency on a person who acquired permanent resident status based on a marriage that occurred within two years. § 216 also provides that a conditional resident may remove the conditions on permanent residence by jointly filing a petition (Form I-751) with the citizen or lawful permanent resident spouse before the expiration of the second year anniversary of the grant of conditional residence.
In the event that the citizen spouse does not cooperate in the joint filing, § 216 provides three grounds for waivers of the joint filing requirement:
1. The marriage was entered into in good faith by the non-citizen spouse, but the qualifying marriage has been terminated and the non-citizen spouse was not at fault in failing to meet the joint filing requirement;
2. The qualifying marriage was entered into in good faith and during the marriage the non-citizen spouse or child was battered by or was the subject of extreme cruelty perpetrated by the citizen or lawful permanent resident spouse and again, the non-citizen spouse was not at fault in failing to meet the joint filing requirement; or
3. Extreme hardship would result if such non-citizen is removed.
The Memo, dated April 10, 2003, attempts to answer several questions regarding whether a conditional resident can file a waiver of the joint petitioning requirement on Form I-751 after commencement of divorce or annulment proceedings but prior to final termination of the marriage.
Unfortunately, the Memo answers this question in the negative. A non-citizen whose conditional resident status is approaching the two-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, according to the Memo.
Over a decade ago, the Immigration and Naturalization Service issued a letter to an attorney suggesting that an I-751 waiver may be filed prior to a final divorce and after a divorce or annulment action has commenced.1 The filing of the I-751 waiver automatically extends the “green card” for one year. If by the time of the interview the conditional resident is issued the final divorce or annulment, the waiver is granted and the non-citizen spouse is granted a permanent green card.
The prior interpretation allowing the filing of an I-751 waiver following the commencement of a divorce or annulment action makes much more sense and is consistent with the Congressional intent behind § 216 to ameliorate the hardship that would befall a non-citizen spouse who is unable to file a joint petition to remove conditional residence. Many states, including New York, require a showing of “fault” in order to obtain a divorce. If the parties wish to mutually terminate the marriage in New York without establishing a “fault” ground, they have to remain separated for one year before they can apply for a divorce. Moreover, divorce proceedings are inevitably delayed due to the high costs of divorce, the other spouse’s obstruction, property settlement negotiations and several other reasons. It is therefore extremely difficult to terminate a marriage within two years.
If the non-citizen spouse is unable to file the I-751 waiver within the two-year period, the conditional residence status terminates and this individual then becomes amenable to removal proceedings. As a result of the termination of residential status, this individual would also lose his or her ability to continue employment in the US. The Memo does add, however, that if such a person is placed in removal proceedings, he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. The Memo further reminds that while a non-citizen spouse is in removal proceedings, the BCIS is required to issue a temporary “green card” during the pendency of his or case before the immigration judge.
The new BCIS interpretation will cause a lot of hardship to non-citizen spouses who may be in the middle of divorce or annulment proceedings, but which have not yet been finalized before the two-year anniversary. The “marriage termination” waiver is the most convenient way for a non-citizen spouse to remove conditional residence if the marriage has fallen apart. The other two grounds, namely, establishing extreme hardship or showing that the non-citizen spouse has been subject to extreme cruelty, are more difficult to obtain.
If a non-citizen spouse cannot file the waiver within the two-year period due to a divorce or annulment proceeding still pending, this person will cease to be a conditional resident after the two-year period. One would have to go through the inconvenience of being placed in removal proceedings before the non-citizen spouse can ask for continuance with the immigration judge and regain the temporary green card.
If the spouse is not put in removal proceedings at the end of the two-year period, this individual would still be able to file for the waiver once the marriage has been legally terminated. However, the gap between the termination of conditional residence at the end of the two-year period and the point of time when the I-751 waiver is filed would amount to a “limbo” period when this individual would not have any status or be able to work in the US.
1See Letter, Weinig, Deputy Asst. Comm., Adjudications, CO 216-C (Sept. 27, 1989), reprinted in 66 Interpreter Releases 1277-79 (Nov. 6, 1989).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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