Family-Based Immigration
Form I-751: Petition to Remove the Conditions on Residence
by
Wendy A. Jerkins
I.
Introduction
A.
General Information
Although conditions may need to be removed on certain employment-based petitions, this
article provides a general overview of the process of removing the conditions on residence for
family-based petitions. If an individual immigrates to the United States based upon a marriage
that is less than two (2) years old at the time of his or her admission, the individual will be a
conditional permanent resident. The conditional permanent resident will be issued a Form I-551
Permanent Resident Card (“green card”) in the same manner as any other lawful permanent
resident. The card, however, will be marked to reflect that the status is conditional and expires
two (2) years after the date of the individual’s admission to the United States.1
I recommend two books: Kurzban’s Immigration Law Sourcebook: A Comprehensive
Outline and Reference Tool, by Ira J. Kurzban, American Immigration Law Foundation, and
Immigration Practice, by Robert Divine, Juris Publishing, Inc. With conditional resident status, I
would suggest one additional source: Immigration Law and the Family, by Sarah Ignatius and
Elisabeth S. Stickney, The National Immigration Project of the National Lawyers Guild (2002).
B.
Background
A conditional permanent resident is entitled to the same rights, privileges, responsibilities
and duties applicable to all other lawful permanent residents.2 A conditional resident, however, is
1
Immigration Law and the Family, by Sarah Ignatius and Elisabeth Stickney, The National Immigration Project of
the National Lawyers Guild (2002), at § 5.1.
2
8 CFR § 216.1.
1
admitted to the United States conditionally for two (2) years.3 “At the time of admission, the
alien shall be notified that the alien and his or her petitioning spouse must file a Form I-751,
Petition to Remove the Conditions on Residence, within the 90-day period immediately
preceding the second anniversary of the alien’s admission for permanent residence.”4
The conditional residency provision was designed to prevent marriage fraud.5 Preparation
for filing a petition to remove conditions on residence begins at the onset of the marital
relationship. Thus, the couple must maintain adequate records to prove the validity of their
marital relationship to an immigration officer.
When an attorney represents an individual who is seeking to remove the conditions on
residence, the USCIS requires the following forms: Form I-751 (Petition to Remove the
Conditions on Residence) and Form G-28 (Notice of Entry of Appearance as Attorney or
Representative).
II.
Jointly Removing the Conditions on Residency
A.
How to Jointly Remove the Conditions on Residence
Scenario 1
Kim is a U.S. Citizen. She met and married her husband, Carlos, in
Argentina while both were students.
Kim files the relative petition in Argentina, and it is approved. Within a few
months, Carlos is able to travel to the United States with lawful status.
Carlos and Kim have been married for less than one year at the time that
Carlos is admitted. Carlos enters the United States as a conditional resident.
Kim and Carlos now live in Atlanta, Georgia. What does Carlos need to do to
remove the conditions on his residency?
3
8 CFR § 235.11(a)(1).
8 CFR § 235.11(a)(1).
5
The Immigration Marriage Fraud Amendments of 1986 (IMFA), Pub. L. No. 99-639 § 5(b), 100 Stat. 3537, 3548
(Nov. 10, 1986), Legislative History at H.R. Rep. No. 906, 99 th Cong. 2d Sess. (on H.R. 3737), reprinted in part in
1986 U.S. Code Cong. & Admin. News 5978-86; Sen. Rep. No. 99-491 (Sept. 26, 1986)(on S. 2270).
4
2
Because this couple has been married for less than two (2) years at the time of receiving
the immigrant status, Carlos will be given conditional residence status. 6 At the time that Carlos
acquires conditional permanent residence, the immigration officer is required to notify Kim and
Carlos of the following:
(1)
the conditional basis of the status,
(2)
the requirement that he apply for removal of the conditions within the ninety (90)
days immediately preceding the second anniversary of his having been granted
such status, and
(3)
that failure to apply for the removal of the conditions will result in the automatic
termination of his lawful status in the United States.7
We will assume that Carlos and Kim have a qualifying marital relationship.8 Because the
parties have remained in a qualifying marital relationship, the couple can jointly apply to remove
the conditions.9
To jointly remove the conditions, Kim and Carlos will file the following:
Form I-751
Form G-28 (if represented by an attorney)
A check or money order in the amount set forth by the USCIS for the filing fee and the
biometrics fee
A copy of the conditional resident’s lawful permanent resident card (Form I-551)
6
INA § 216.
8 CFR § 216.2(a).
8
INA § 216(g)(1)&(3).
9
8 CFR § 216.4; INA § 216(c)(1).
7
3
Supporting Documentation:
(i)
Documentation showing joint ownership of property;
(ii)
Lease showing joint tenancy of a common residence;
(iii) Documentation showing commingling of financial resources;
(iv)
Birth certificates of children born to the marriage;
(v)
Affidavits of third parties having knowledge of the bona fides of the marital
relationship, or
(vi)
Other documentation establishing that the marriage was not entered into in
order to evade the immigration laws of the United States.10
Kim and Carlos must sign and file Form I-751 within ninety (90) days of the second
anniversary of the grant of conditional residence.11 If filed after the ninety (90) day window, the
application may be considered filed only if the couple demonstrates “good cause and extenuating
circumstances for failure to file the petition during the” ninety (90) day period.12
If the couple fails to file within the ninety (90) day window and Carlos is placed in
removal proceedings, the U.S. Citizenship and Immigration Services (hereinafter, “UCIS”) “may
stay such removal proceedings against . . . [Carlos] pending the filing of the petition.”13
Generally, the application “shall be filed with the director of the regional service center
having jurisdiction over the alien’s place of residence.”14 In the past, for applicants (like Kim and
Carlos) who resided in Atlanta and, therefore, fell within the jurisdiction of the Vermont Service
Center, the petitions would have been mailed to the following address:
U.S. Citizenship and Immigration Service
U.S. Department of Homeland Security
Vermont Service Center
75 Lower Welden Street
P.O. Box 200
St. Albans, Vermont 05479-0001
10
8 CFR § 216.4(5).
8 CFR § 216.4(a)(1); INA § 216(d)(2)(A).
12
INA § 216(d)(2)(B).
13
INA § 216(d)(2)(B) & (C).
14
8 CFR § 216.4(a)(3).
11
4
In light of the rapid and frequent changes at USCIS, it is important to regularly verify the filing
fees and the mailing addresses prior to filing any petition or application. As with most issues
related to immigration law, the filing fees and the addresses are subject to change without much
advance notice. The check or money order for the filing fees and the biometrics fees should be
made payable to the U.S. Citizenship and Immigration Services.15
The processing times for the adjudication of the applications vary. Patience and diligent
inquiry are quite essential.
With the joint filing, Carlos and Kim may be required to appear for a personal
interview.16 The USCIS, however, may waive the interview.17
When the notice of the interview is received and the interview date scheduled, it is a good
idea to schedule a brief meeting with your clients. During this meeting with your clients, you will
verify that your clients have all of the needed documents and that the documents are organized.
Your goal as the attorney is to make it as easy as possible for the immigration officer to review
and to approve the petition. Make sure that the originals are available for presentation to the
immigration officer. Get certified copies of official documents. Make a copy of any document
that will be presented to the officer. During this meeting with your clients, you will need to make
sure that your client—particularly your conditional resident client—has informed you of any and
all criminal convictions and/or arrests. You may be able to remedy the problem involving any
criminal charges before the interview.
In March of 2003, the U.S. Citizenship and Immigration Services (“USCIS”) replaced the U.S. Immigration and
Naturalization Service (“INS”). USCIS falls under the U.S. Department of Homeland Security.
16
INA § 216(c)(1)(B).
17
8 CFR § 216.4(b)(1).
15
5
At the interview, hopefully, the immigration officer will approve the petition. The
immigration officer, however, may request more evidence. If evidence is provided to the
satisfaction of the officer, the conditions will be removed. If the additional evidence is not
sufficient, the officer may deny the application. The applicant then will seek review in removal
proceedings.
Please note that the interview is important. Not only could a conditional resident’s status
be adversely terminated if the conditional resident and the spouse fail to petition the BCIS within
ninety (90) day period before the second anniversary of conditional residence, the conditional
resident’s status can be adversely terminated if the conditional resident and the spouse fail to
jointly appear at the interview (unless good cause is shown).18
Other grounds for the adverse termination of a conditional resident’s status are as
follows: If it is determined that the marital relationship “was entered into for the purpose of
procuring an alien’s admission as an immigrant;” “has been judicially annulled or terminated,
other than through the death of a spouse;” or a “fee or other consideration was given (other than
a fee or other consideration for assistance in preparation of a lawful petition),” the Attorney
General shall notify the parties and terminate the permanent resident status of the alien.19 The
alien, however, can seek review of the decision before Immigration Court.20
Even after the conditions have been removed, if the USCIS “determines that an alien
spouse obtained permanent resident status through a marriage which was entered into for the
Kurzban’s Immigration Law Sourcebook, at 458.
INA § 216(b)(1).
20
INA § 216(b)(2); 8 CFR § 216.3.
18
19
6
purpose of evading the immigration laws,” the USCIS may institute rescission or removal
proceedings.21
Scenario 2
Same factual scenario as above, however, Carlos is the single parent of a five
(5) year old daughter at the time that he meets and marries Kim. Carlos’
daughter, Maria, travels to the United States at the same time as her father
and her new stepmother.
What must be done for the child?
We will assume that Kim filed a relative petition (Form I-130) for Carlos and a relative
petition (Form I-130) for Maria. Because of their relationship to Kim, both Carlos and Maria
would be deemed immediate relatives. As long as Maria is a minor (under the age of twenty-one)
and is admitted to the United States “on the same date or within 90 days” of her father, Maria
will enter the United States in the same conditional status as Carlos.
According to 8 CFR § 216.4(a)(2) (Dependent children.)
“Dependent children of a conditional permanent resident who acquired
conditional permanent resident status concurrently with the parent may be
included in the joint petition filed by the parent and the parent’s petitioning
spouse. A child shall be deemed to have acquired conditional residence status
concurrently with the parent if the child’s residence was acquired on the same
date or within 90 days thereafter. Children who cannot be included in a joint
petition filed by the parent and parent’s petitioning spouse due to the child’s not
having acquired conditional resident status concurrently with the parent, the death
of the parent, or other reasons may file a separate Petition to Remove the
Conditions on Residence (Form I-751).”22
The conditions on Maria’s status will be removed at the same time and in the same manner as her
father. Maria may be included in her father’s petition.
21
22
INA § 216(b).
8 CFR § 216.4(a)(2).
7
Scenario 3
Same factual scenario as Scenario 2, however, Carlos, Kim, and Maria are
temporarily visiting Argentina at the time of the second anniversary.
What happens?
The petition must still be filed. The petition to remove the conditions must be filed within
the ninety (90) day period “regardless of the amount of physical presence which the alien has
accumulated in the United States.”23 “A petition may be filed regardless of whether the alien is
physically present in the United States. However, if the alien is outside of the United States at the
time of filing, he or she must return to the United States, with his or her spouse and dependent
children, to comply with the interview requirements . . . ”24
It must be noted that a conditional resident, like a lawful permanent resident, must be
careful to maintain continuous residence in the United States. A conditional resident does not
want to risk abandoning his or her residence in the United States.
III.
Waivers - Removing the Conditions on Residency Without the Petitioning Spouse
If a conditional resident is unable to file jointly with his or her spouse, he or she may be
able to apply for any of the following waivers: (a) extreme hardship, (b) a terminated good faith
marriage, and/or (c) battery or extreme cruelty. A conditional resident can apply for more than
one waiver. A conditional resident should apply for each and every waiver that reflects their
individual situation and that fits their specific circumstance. If the conditional resident fails to
apply for a specific waiver, the Immigration Judge is limited to review only the waiver that was
requested before the USCIS.25 The three grounds for a waiver are separate and independent.26
23
8 CFR § 216.4(a)(1).
8 CFR § 216.4(a)(4).
25
Immigration Law and the Family, at § 5:19.
24
8
As stated above, a conditional resident can apply for a waiver of the joint filing
requirements.27 Use Form I-751 to apply for the waiver, and the filing fee is $505. Always check
to verify the current USCIS filing fee. The application shall be filed with the regional service
center director having jurisdiction over the alien’s place of residence.28 As with the joint filing
requirements, enclose a copy of the conditional lawful permanent residency card (Form I-551)
with the copies of supporting documentation. With most of the waivers, it will be helpful to
attach an affidavit from the conditional resident. As a part of the adjudication of the application,
an interview may be scheduled in which the conditional resident may be required to appear.29
A decision regarding the application for a waiver shall be in writing.30 If the decision is
adverse, the alien may seek review of the decision in removal proceedings before the
Immigration Judge.31
Scenario 4
Same factual scenario as Scenario 1, except, Kim refuses to join Carlos in
filing to remove the conditions.
Carlos may file for a waiver. “If the joint petition cannot be filed due to the termination
of the marriage through annulment, divorce, or the death of the petitioning spouse, or if the
petitioning spouse refuses to join in the filing of the petition, the conditional permanent resident
26
Matter of Balsillie, 20 I&N Dec 486 (1992).
8 CFR § 216.5(a)(1). Although unclear, a conditional resident may apply for the waiver before or after the ninetyday period. See Kurzban’s Immigration Law Sourcebook, at 550 (stating that “waivers based on cruelty to be filed at
any time . . . are . . . extended to all waivers”). In the absence of specific statutory guidance and uniform policy,
often the local policy influences the outcome. Factors demonstrating “good cause” in writing will allow the
immigration official to excuse “the failure to file Form I-751 within the required time period.” 8 CFR § 216.4(a)(6).
28
8 CFR § 216.5(c).
29
8 CFR § 216.5(d).
30
8 CFR § 216.5(f).
31
Id.
27
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may apply for a waiver of the requirement to file the joint petition . . . ”32 Upon the proper filing
of the waiver, “the alien’s conditional permanent resident status shall be extended automatically,
if necessary, until such time as the director has adjudicated the petition.”33
The statute is not explicit regarding the procedures for a conditional resident whose
spouse has died.34 “If the petitioning spouse died within the first two years of the conditional
resident’s admission to the United States, the conditional resident spouse must file the petition
for the waiver of the joint filing requirement.”35 Generally, the conditional resident should
provide the deceased spouse’s death certificate and documentation to demonstrate that the
qualifying marriage was entered into in good faith.36
Scenario 5
Same facts as in Scenario 4, however, the situation in Carlos’ native land has
deteriorated. Argentina now faces a severe economic crisis, and medical
supplies and services are restricted. Recently, Carlos has been diagnosed
with a debilitating illness.
(A)
EXTREME HARDSHIP
If Carlos can demonstrate that removal from the United States would result in extreme
hardship, he is eligible to apply for the extreme hardship waiver.37 Importantly, it appears that
Carlos’ “extreme hardship” arose after he entered the United States.
In an application based upon a claim of extreme hardship,
“the director shall take into account only those factors that arose subsequent to
the alien’s entry as a conditional permanent resident. The director shall bear in
mind that any removal from the United States is likely to result in a certain degree
of hardship, and that only in those cases where the hardship is extreme should the
32
8 CFR § 216.4(a)(1).
Id.
34
8 CFR § 216.4(a)(1).
35
Immigration Law and the Family, at § 5:20
36
Id.
37
INA § 216.5(a)(1)(i).
33
10
application for a waiver be granted. The burden of establishing that extreme
hardship exists rests solely with the applicant.”38
“Extreme hardship” is determined on a case-by-case basis.39 Factors to be
considered in determining “extreme hardship” include—but are not limited to—the
following: (1) the age of the individual at the time of entry into the United States, (2) the
individual’s ability to speak the native language and to adjust to life in the country of
return, (3) the health condition of the individual and the availability of any required
medical treatment in the country to which the individual will be returned, (4) the
individual’s ability to obtain employment in the country to which he faces return, (5) the
length of residence in the United States, (6) the existence of other family members who
are or will be legally in the United States, (7) the financial and the psychological impact
of the individual’s departure, (8) the current political and economic conditions in the
country to which the individual faces return, (9) contributions to and ties to a community
in the United States, including the degree of integration into the society, and (10) the
individual’s immigration history.40
(B)
A TERMINATED GOOD FAITH MARRIAGE
If Carlos divorces his wife and he is able to demonstrate that the marriage was entered
into in good faith, Carlos may apply for a waiver. The conditional resident can apply for a waiver
if he can demonstrate that “the qualifying marriage was entered into in good faith by the alien
38
8 CFR § 216.5(e)(1) (emphasis added); INA § 216(c)(4)(A).
8 CFR § 240.58
40
8 CFR § 240.58.
39
11
spouse, but the qualifying marriage has been terminated (other than through the death of the
spouse)” and the conditional resident was not at fault in failing to file a timely petition.41
The USCIS will review the following evidence to determine if the qualifying marriage
was entered in good faith:
(i)
(ii)
(iii)
(iv)
Documentation relating to the degree to which the financial assets and
liabilities of the parties were combined;
Documentation concerning the length of time during which the parties
cohabited after the marriage and after the alien obtained permanent
residence;
Birth certificates of children born to the marriage; and
Other evidence deemed pertinent . . .42
The above list is not exhaustive or all-inclusive.
To qualify for the good faith waiver, the USCIS clarified that the marriage must be
terminated. “[T]hus, the mere commencement of divorce proceedings is not sufficient.”43
(C)
BATTERY OR EXTREME CRUELTY
If Carlos was the victim of abuse or extreme cruelty in the marital relationship, he may be
eligible to apply for a waiver of the joint filing requirement. The conditional resident must
demonstrate that the “qualifying marriage was entered into in good faith by the conditional
resident but during the marriage the alien spouse or child was battered by or subjected to extreme
cruelty committed by the citizen or permanent resident spouse or parent.”44 “The conditional
resident parent of a battered or abused child may apply for the waiver regardless of the child’s
citizenship or immigration status.”45 The conditional resident who is the subject of battery or
41
8 CFR § 216.5(a)(1)(ii); INA § 216(c)(4)(B).
8 CFR § 216.5(e)(2)
43
Memorandum from William R. Yates, Acting Associate Director, Operations, Bureau of Citizenship and
Immigration Services, “Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage,”
April 10, 2003.
44
8 CFR § 216.5(a)(1)(iii); INA § 216(c)(4)(C).
45
8 CFR § 216.5(e)(3).
42
12
extreme abuse “may apply for the waiver regardless of his or her present marital status.” 46
Furthermore, this conditional resident may apply for the waiver even if residing with the citizen
or permanent resident spouse, divorced, or separated.47
The information provided by the abused conditional resident spouse or child is
confidential.48 In reviewing this waiver, the USCIS must consider any credible evidence.49
Examples of “battery” or “extreme cruelty” include—but are not 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.”50 “Evidence of physical abuse may include, but is not limited to,
expert testimony in the form of reports and affidavits from police, judges, medical personnel,
school officials and social service agency personnel.”51 A person recognized in the field to be an
expert can provide an evaluation.52 For example, licensed clinical social workers, psychologists,
and psychiatrists are professionals able to provide the evaluation.53
IV.
Conclusion
This article does not cover every possible factual or legal scenario that may arise in an
attorney’s immigration practice. The immigration attorney must be flexible in representing their
clients. It is important, however, that clients are reminded of the civil and criminal penalties that
may attach if individuals commit marriage fraud.
46
8 CFR § 216.5(e)(3)(ii).
Id.
48
INA § 216(c)(4); 8 CFR § 216.5(e)(3)(viii).
49
INA § 216(c)(4).
50
8 CFR § 216.5(e)(3)(i).
51
8 CFR § 216.5(e)(3)(iii).
52
8 CFR § 216.5(e)(3)(iv).
53
8 CFR § 216.5(e)(3)(vii).
47
13
This article is neither intended to create—nor does it create—an attorney/client
relationship. Each case is different and requires a case specific analysis.
14