Mr. Lee's Article "U.S.C.I.S. Liberalizes Filing 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:
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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? (Note 1)
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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.
Note 1: Under 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.
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