After the Love is Gone
I-751 Waivers
February 14, 2013 MSBA Immigration Law
Section Webinar Conference
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter: ©2013
Mrs. Cynthia Groomes Katz, Esquire Law
Offices of Cynthia A. Groomes, P.C.
1
Anatomy of the I-751 Process
A Waiver of the
Joint Petition
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
2
Conditional Residency Defined
• Marriage results in conditional residence (CR) unless
it is more than 2 years old at the time of granting the
immigrant status. INA §216, 8 USC § 1186a.
• The two period is measured from the time residency
is granted.
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
3
Overview of the Types of I-751
Waivers
• The termination of the beneficiary’s status and
removal would result in extreme hardship.
• The Beneficiary Entered into the Marriage in good
faith, but his/her spouse subsequently died.
• The Beneficiary Entered into the Marriage in good
faith, but the marriage was later terminated due to
divorce or annulment.
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
4
Overview of the Types of I-751
Waivers
• The Beneficiary Entered into the Marriage in
good faith and the couple has remained
married, but the beneficiary has been
battered or subjected to extreme cruelty by
the U.S. citizen or permanent resident spouse.
February 14, 2013 MSBA Immigration Law
Section Webinar Conference Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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Is this a Matter of Dual
Representation?
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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The I-751 Waiver: The Marriage was Terminated
due to Divorce or Annulment
• If the parties cannot file jointly (where, for example,
the couple is divorced), the noncitizen may file a
waiver of the joint filing requirement on Form I-751.
8 CFR 216.5, 1216.5.
• When do “we” File the Waiver? The I-130
Beneficiary may file the I-751 petition at any time
after s/he is granted conditional resident status and
before s/he is removed.
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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Current Marital Status
Couple is Still Legally Married
• Couple files jointly but is Legally Separated and/ or the
Divorce/Annulment is Pending:
– USCIS issues the Conditional Resident a Request for
Evidence (RFE) allowing 87 days to provide a decree of
divorce/annulment.
• Decree submitted: If the decree is submitted within that time
period, the officer will amend the petition to treat it as a waiver
petition.
• Failure to submit the Decree: USCIS takes the position that the
couple is still legally married. The officer will adjudicate the I-751
as a joint petition. Kurzban’s Immigration Law Sourcebook , 13th
Edition, 965 (2012 ed.) (hereinafter Kurzban) citing Memo, Neufeld,
Acting Assoc. Director , USCIS, I-751 Filed Prior to Termination of
Marriage (Apr. 3, 2009) at 2-3, published on AILA InfoNet at Doc.
February 14, 2013 MSBA Immigration Law
No. 09072166.
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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Current Marital Status
Couple is Divorced
• If the couple divorces before filing a joint petition, the
foreign national cannot file the I-751 waiver until the
divorce is final. Kurzban citing Memo, Yates, Acting
Assoc. Director of Operations, BUSCIS (Apr. 10, 2003),
published on AILA InfoNet at Doc. No. 03050643
(May 6, 2003).
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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Notice of Appear
• If USCIS denies the I-751 petition, the applicant is
placed in removal proceedings. INA §237(a)(1)(D), 8
USC §1227(a)(1)(D); 8 CFR §§216.4 (d)(2), 1216.4
(d)(2).
• There is no appeal of a denied petition except in
removal proceedings. 8 CFR §§216.4 (d), 216.5 (f);
1216.5 (f); Matter of Mendes, 20 I&N Dec. 833 (BIA
1994).
• Applicant cannot file the I-751 with the Immigration
Judge in the first instance. Legal Opinion, Cook,
General Counsel (Jan. 9, 1990), reprinted in 67 No. 6
Interpreter Releases 159, 170 (Feb. 5, 1990).
February 14, 2013 MSBA Immigration Law
Section Webinar Conference -Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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Notice to Appear
Continued
• An Immigration Judge can only review the denial of a
waiver by USCIS. Matter of Lemhammad, 20 I&N
Dec. 316 (BIA 1991).
• Recurring Board of Immigration Appeals (BIA) Cases:
– Matter of Stowers, 22 I&N Dec. 605 (BIA 1999).
– Matter of Tee, 20 I&N Dec. 949 (BIA 1995).
– Matter of Anderson, 20 I&N Dec. 888 (BIA 1994).
– Matter of Mendes, 20 I&N Dec. 833 (BIA 1994).
– Matter of Lemhammad, 20 I&N Dec. 316 (BIA
February 14, 2013 MSBA Immigration Law
1991).
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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Notice to Appear
Continued
FN placed into proceedings before the divorce is final?
● Ask the Immigration Judge to continue proceedings
until the divorce is final.
● Alternative thought: Move to reopen proceedings
based upon the finality of the divorce and the ability to
now file the I-751 waiver. Alrefae v. Gonzales, 471 F.3d
353, 361-63 (2dCir. 2006) [reversing the Immigration
Judge for failure to consider reopening proceedings
where respondent was divorced and could file the I-751
but offering no view on whether it was untimely].
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
12
Practice Pointers/ Q & A
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Conflict of Interest
Will the ex-spouse assist?
Evidence to Present
Burden of Proof
Preparing your client for the USCIS Interview
Preparing your client for Immigration Court
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
13
Legal Resources
• American Immigration Lawyers Association – InfoNet at
www.aila.org.
• Kurzban’s Immigration Law Sourcebook Thirteenth
Edition.
• U.S. Department of Homeland Security United States
Citizenship and Immigration Services at www.uscis.gov.
• U.S. Department of Justice – Executive Office for
Immigration Review: Practice Manual
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
14
Law Offices of
Cynthia A. Groomes, P.C.
Presenter:
Mrs. Cynthia Groomes Katz, Attorney and
Counselor-at-Law
Founder
7272 Wisconsin Avenue, Suite 30
Bethesda, Maryland 20814
www.groomes.com
groomes@groomes.com
February 14, 2013 MSBA Immigration Law
Section Webinar Conference - Presenter:
©2013 Mrs. Cynthia Groomes Katz, Esquire
Law Offices of Cynthia A. Groomes, P.C.
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