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USCIS Liberalizes And Amending Rules For I-751 Petitions To Assist In Timely Filing And Deal With Changed Circumstances After Filing

by Alan Lee, Esq.

In a recently released memorandum dated April 3, 2009 by Donald Neufeld, Acting Associate Director of U.S.C.I.S. titled, "I-751 Filed Prior to Termination of Marriage," the Service has finally given an avenue of relief for two confounding questions in this area:

In a recently released memorandum dated April 3, 2009 by Donald Neufeld, Acting Associate Director of U.S.C.I.S. titled, "I-751 Filed Prior to Termination of Marriage," the Service has finally given an avenue of relief for two confounding questions in this area:

  1. What option does a conditional resident have where he/she is separated but not divorced, the deadline is coming up for filing the I-751, and the U.S. citizen spouse will not consent to sign a joint petition?1
  2. Is it possible to change the character of the I-751 filing from one ground, e.g. joint filing to divorced but having had a bonafide marriage, once it has been submitted?

On the first issue, the answer previously was that the conditional resident was stuck until the time that he/she could obtain the divorce and then file a late I-751 to have the conditional basis of residence removed. In the interim of course, U.S.C.I.S. could issue a notice to appear (NTA) for the individual to appear in the immigration court for a removal hearing. In the past Service memorandum of April 10, 2003, "Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage" the Service had reiterated that there is no waiver of the joint filing requirement based solely on the fact that a conditional permanent resident may have entered the marriage in good faith, but that he/she was legally separated from the petitioning spouse or was currently in divorce or annulment proceedings. Also that an individual caught in that situation was not allowed to apply for a waiver on the basis that the qualifying marriage was entered into in good faith by the alien spouse, but that the qualifying marriage had been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of a joint filing. In the new memorandum, while not expressly approving the practice, the Service states that if an immigration service officer encounters an I-751 on the basis of termination of a marriage, but that the alien is currently legally separated or in pending divorce or annulment proceedings, the officer is to issue a request for evidence with a response period of 87 days, and that the conditional permanent resident then has the opportunity to establish eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment within the 87 days. Looking at the current processing times of the U.S.C.I.S. service centers (as of July 16, 2009) of 6-7 months to even reach the I-751 filings with the added 3 months to respond, that would give conditional permanent residents a window of approximately 9-10 months from the date of filing to finalize the termination of their marriages. The memorandum states that if the individual establishes eligibility for the waiver within that period, the immigration service officer adjudicates the petition on the merits in accordance with established procedure. If such cannot be done, the regular procedures would ensue such as denial of the I-751, issuance of a notice to terminate the conditional residence status, and ultimately the issuance of a notice to appear. The memo also notes that in denying the I-751 for this reason, the immigration service officer will also notify the individual that he/she may be able to establish eligibility for a waiver before the immigration judge in the event that the marriage is terminated during the pendency of removal proceedings.

On the second issue - changing the ground of I-751 waiver once the application has been submitted - U.S.C.I.S. offices have had disparate policies in the past with some allowing a change to be made on the pending I-751, and others stating that the petitioner must refile the I-751 and await its adjudication. In a case that we had a few years ago involving the joint filing of an applicant whose wife passed away after I-751 filing and was scheduled for interview, the New York office of U.S.C.I.S. held the interview, expressed condolences to the applicant, would not accept an amendment to the pending petition or new filing with fee locally, but held the file during the time that a new I-751 with fee was accepted and adjudicated at the Vermont Service Center. The new memo appears to speak to this situation in allowing an applicant who has filed a joint I-751 petition to change the character of the petition if the immigration service officer issues a request for evidence where the petitioners are separated or have initiated divorce or annulment proceedings. Where the immigration service officer specifically asks the individual to provide a copy of the final divorce decree or annulment along with a request stating that he/she would like to have the joint filing petition treated as a waiver petition, the conditional permanent resident is afforded an opportunity within the 87 day response period to provide evidence that proceedings have been finalized and it gives him/her an opportunity to request a waiver to the joint filing without refiling. In such case, the immigration service officer is to amend the I-751 petition to indicate that the individual is eligible for a waiver of the joint filing requirements based on termination of marriage and adjudicate the petition on the merits in accordance with established policy.

The importance of the memorandum is to allow conditional permanent residents who are only separated or in divorce or annulment proceedings to timely file for a waiver based upon a bonafide yet terminated marriage by themselves without having to ask the U.S. citizen spouse to sign a joint petition, and to later provide evidence of final marriage termination upon receipt of a request for evidence from U.S.C.I.S. It also gives immigration service officers the authority to amend the basis of I-751 filing rather than making conditional permanent residents refile and pay new fees for another I-751. These are welcome changes.

This article 2009 Alan Lee, Esq.

End Notes

1Under Section 216(c) of the Immigration and Nationality Act, the conditional basis of resident status can be removed through an I-751 petition through 1. a joint filing of husband and wife; or 2. if the alien entered the marriage in good faith but the spouse subsequently died; or 3. if the alien entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment; or 4. if the alien entered the marriage in good faith and has remained married, but has been battered or subjected to extreme cruelty by his/her U.S. citizen or permanent resident spouse; or 5. if termination of the alien status and removal would result in extreme hardship. Numbers 2-5 do not require the signature of the petitioning U.S. citizen spouse on the I-751.

About The Author

Alan Lee, Esq. The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004

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