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Filing An I-751 Petitioner For A Client In Divorce Or Annulment Proceedings

by Cyrus D. Mehta


A recent memo from William R. Yates, Acting Associate Director, Operations, United States Citizenship and Immigration Services (the “USCIS” or “Service”) 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 (the “Memo”).1 The new policy will needlessly put into jeopardy the status of conditional residents who are unable to obtain a final termination of their marriage prior to the second anniversary of the grant of conditional residency.

This advisory provides guidance to practitioners on assisting clients who need to cope with this policy and also to ensure that affected non-citizens do not lose status due to their inability to file a waiver prior to the legal termination of the marriage. The advisory also advocates for a return of the prior Service policy that allowed a non-citizen spouse to file the waiver after divorce proceedings had commenced, prior to the actual termination of the marriage.

Grounds for Removing Conditional Residency

As a background, § 216 of the Immigration and Nationality Act (the “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. A conditional resident may remove the condition on permanent residence by jointly filing a petition (Form I-751) with the citizen spouse within a 90-day period prior to the expiration of the second year anniversary of the grant of conditional residence.2 The joint applicants must further establish, inter alia, that the qualifying marriage was entered into legally; has not been judicially annulled or terminated, other than through death of a spouse; and that it was not entered into for the purpose of procuring the non-citizen’s entry as an immigrant.3

In the event that the non-citizen spouse is unable to jointly file Form I-751, § 216(c)(4) provides three waivers of the joint filing requirement if the non-citizen spouse demonstrates:

(A) Extreme hardship would result if such non-citizen is removed (the “Hardship Waiver”);

(B) The qualifying marriage was entered into in good faith by the non-citizen spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the non-citizen was not at fault in failing to meet the joint filing requirements (the “Marriage Termination Waiver”); or

(C) 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 (the “Battered Spouse Waiver”).

Arguing Against the New Policy

The Memo attempts to answer questions that the Service has received regarding whether a conditional resident can file a Marriage Termination Waiver 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 (the “INS” or “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.4 The filing of the I-751 petition, either jointly or as a waiver, will extend conditional residency until the petition is approved.5 If the conditional resident is issued the final divorce or annulment, and supplements the application with a divorce decree at the time of interview, the waiver could be granted resulting in the removal of conditional residency. This practice has gone unchallenged until the issuance of the Memo.

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 the waiver grounds under § 216(c)(4) 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.6 If the parties wish to mutually terminate the marriage in New York without establishing a “fault” ground, they have to stay apart for one year pursuant to a written separation agreement before they can apply for a divorce.7 Moreover, divorce proceedings are inevitably delayed due to the high costs of divorce, the other spouse’s obstruction, property settlement negotiations and for a variety of other reasons beyond the control of the non-citizen. It is therefore extremely difficult to terminate a marriage within two years.

The Memo erroneously suggests that “(t)he statute clearly requires that the marriage already be terminated and, thus, the mere commencement of divorce proceedings is not sufficient.” While § 216(c)(4)(B) indicates that the waiver of the joint filing requirement may be granted if the non-citizen spouse can establish “the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1),” there is nothing to preclude the non-citizen from filing an I-751 petition if proof of the termination can be produced to the USCIS prior to the adjudication of the petition.8

The Memo also inappropriately cites Matter of Anderson9 as further basis to support the position that the marriage must have been terminated before an I-751 petition can be filed. In that case, the Board of Immigration Appeals (BIA) did not permit the non-citizen spouse in deportation proceedings to request consideration of the Marriage Termination Waiver when the original I-751 petition was filed with the Service under the Hardship Waiver and denied. The BIA further held that original jurisdiction to rule on the merits of an application for a waiver was with the Service rather than the immigration judge. Since the respondent had originally sought the Hardship Waiver, the jurisdiction of the immigration judge was limited to consideration of that claim only, and not a new waiver request that was made for the first time before an immigration judge. Thus, the BIA indicated obiter dictum that in the event that the respondent wished to seek consideration under the new waiver based on “changed circumstances in her marriage, i.e., through the termination of marriage” she would have to seek a continuance in order to pursue her alternative application with the Service.10

Nowhere in Matter of Anderson did the BIA refuse to entertain the respondent’s new request for the Marriage Termination Waiver only because she had not terminated her marriage. Indeed, even if the respondent had terminated her marriage when she made the new waiver request in deportation proceedings, the outcome under Matter of Anderson would have been the same. She would first have to file a new I-751 with the Service, and if the Service again denied the request, she would have been able to seek consideration of this waiver ground before an immigration judge.

If the non-citizen spouse is unable to file the I-751 waiver within the two-year period, the conditional residence status terminates upon the second anniversary and this individual then becomes amenable to removal proceedings.11 As a result of the termination of residential status, he or she would also lose the 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.12 The Memo further reminds that while a non-citizen spouse is in removal proceedings, the Service is required to issue a temporary resident alien card (Form I-551) during the pendency of his or case before the immigration judge.

The Memo relies on a 1996 General Counsel Opinion 13 as the basis for issuance of Form I-551 when the non-citizen is placed in removal proceedings. Interestingly, this opinion contemplates a situation when the non-citizen is put in proceedings once Form I-751 is denied. It also instructs the Service to issue an order to show cause (which was the document issued prior to 1996 to initiate deportation) along with the denial.14 In the situation contemplated under the Memo, the non-citizen has not been able to file an I-751 petition as he or she is unable to do so due to the lack of a final judicial decree terminating the marriage. While permanent residence is terminated if the non-citizen fails to file the I-751 petition, he or she is more likely to appear on the radar screen of the Service if an I-751 is filed and denied. Even if the Service does terminate permanent resident status of a non-citizen who has not yet filed the I-751, it is not very efficient in concurrently issuing the non-citizen a notice to appear (NTA) before an immigration judge in removal proceedings.

This “limbo” period would cause a lot of hardship to a non-citizen spouse who may not be able to work or travel. Furthermore, there is a lot of trauma, and even stigma, associated with a removal proceeding, which, hopefully would once again trigger the ability for the non-citizen spouse to be issued a temporary I-551. A non-citizen issued a temporary I-551 under these circumstances can both work and travel.15

The new Memo 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 evidentiary burden for establishing a Hardship Waiver and Battered Spouse Waiver is more onerous to the non-citizen spouse.

Strategies for Alleviating Hardship to the Non-Citizen Spouse

Rather than wait for the Service to issue a notice to appear, it might make sense to file an I-751 on another basis.

Even if the non-citizen spouse is unable to terminate the marriage within the two-year period, it may still be advisable for this individual to file jointly with the citizen spouse, provided the citizen spouse cooperates with respect to signing the I-751. As long as the party had a bona fide intent to enter into a marriage, subsequent conduct after marriage, no matter how unconventional, does not prove lack of material intent.16 Furthermore, non-legal separation is only relevant for determining whether the marriage was fraudulent at its inception. If this is not the case, the USCIS cannot deny a petition because the parties are not living together any longer.17 The practitioner filing the I-751 should indicate that he or she is taking this position because of the limitations posed by the Memo to filing a Marriage Termination Waiver. By filing such an application, the non-citizen spouse affected by the Memo would still be able to continue as a conditional resident and retain the ability to work. If the marriage is ultimately terminated during the pendency of such a filing, the noncitizen spouse should immediately file another I-751, under the Marriage Termination Waiver. The prior jointly filed I-751 should then be withdrawn.

It is important to file the second I-751 at the USCIS service center rather than hope to amend the existing I-751 petition later at the interview. Many district offices, including New York, are taking the position that the I-751 cannot be amended at the interview. Thus, it is better to be proactive and file the new I-751 as quickly as possible as it takes approximately two years or more for the case to be scheduled for an interview in New York. An already filed I-751 might stave off a notice to appear (NTA) before an immigration judge.

The above strategy is only applicable if the citizen spouse is willing to cooperate, notwithstanding a pending action to terminate the marriage. If the spouse is unwilling to sign the I-751 petition, the non-citizen spouse may consider filing a Battered Spouse Waiver or Hardship Waiver or both. Although the I-751 form states that a conditional resident may choose one of the three waiver categories, the applicant may claim more than one waiver and argue each waiver in the alternative.18 While a discussion of the evidentiary grounds to qualify for such waiver applications is beyond the scope of this article,19 it should be noted that the failure of the citizen spouse to cooperate with the I-751 and related immigration procedures could amount to extreme cruelty.20

Again, if the marriage terminated during the pendency of such a filing, another I-751 can subsequently be filed under the Marriage Termination Waiver along with, if applicable, the other two waiver grounds.

Memo Should Not Be Applied Retroactively

As the Memo was issued only on April 10, 2003, many waiver requests have been filed while the divorce or annulment proceeding was still pending, and the non-citizen spouse has hoped to appear at the interview post-April 10, 2003 with the final termination decree. It is possible that District Offices may apply the Memo retroactively. If this happens, a new I-751 should immediately be filed at the USCIS service center with evidence of the legal termination of marriage. Such a filing will once again result in the temporary grant of conditional resident status for a period of one year at a time, although it will set this individual back by another two years. If the non-citizen is issued an NTA, he or she should ask the immigration judge for a continuance to file the new I-751 with the Service.

It is hoped that the Memo is not applied retroactively. Rather, this Memo should be rescinded altogether as it is not supported by the statute or case law, causes undue hardship to non-citizen spouses in matrimonial proceedings, and results in additional filings and administrative work for an already overburdened agency and immigration court system.

1Memo, Yates Acting Associate Director, Operations, BCIS HQADN 70/23-12 (April 10, 2003). This article is an expansion on another article on the same Memo, "BCIS Disallows Filing of Waiver of the Joint Filing Requirement Prior to Final Termination."

2INA § 216(c).

3INA § 216(d)(1).

4See Letter, Weinig, Deputy Asst. Comm., Adjudications, CO 216-C (Sept. 27, 1989), reprinted in 66 Interpreter Releases 1277-79 (Nov. 13, 1989).

58 C.F.R. § 216.4(a)(1). Upon filing the I-751 petition, the USCIS automatically extends conditional status for one year. See INS Modifies Process for I-751 Conditional Status Petitions, 74 Interpreter Releases 1554 (Oct. 10, 1997). 6New York Domestic Relations Law (DRL) § 170.

7DRL § 170 (f).

8As a practical matter, it is highly unlikely that the non-citizen would be bale to obtain a final divorce prior to the adjudication of the I-751 petition as all service centers are taking at least one year to process the I-751, and the Vermont Service Center is taking almost two years.

920 I&N Dec. 888 (BIA 1994).

10See also, Matter of Mendes, 20 I&N 833 (BIA 1994).

11INA § 216 (c)(2)(A).

12 Presumably, after the continuance and finalization of the divorce or annulment, the non-citizen spouse would have to first file the I-751 petition with the USCIS and not the immigration judge. See Matter of Anderson, supra.

13Genco Op. No. 96-12, available on Westlaw at 1996 WL 33166343 (INS).

14Id., Note 13, supra. The following extract from the opinion on page 3 is worth noting: “Therefore, in light of the termination date of an alien’s lawful permanent residence, and the gap that ensues if an order to show cause is not issued, failure to timely issue the order to show cause leaves the INS vulnerable should an alien file an action in mandamus to compel performance of that requirement.”

15Id., Note 13, supra, at page 3.

16See Bark v. INS, 551 F. 2d 1200 (9th Cir. 1975).

17See Matter or McKee, 17 I&N Dec. 332 (BIA 1980).

18Comprehensive 1990 INS Responses to Marriage Fraud Act Inquiries, reproduced in 67 Interpreter Releases 334 (Mar. 19, 1990), Response 42.

19For a comprehensive overview, See Stickney, “Conditional and Permanent Residency through Marriage,” Part 1 and II, 99-10 and 99-11 Immigration Briefings (October-November 1999); Mehta and Fortino-Brown, “Revisiting the Hardship Waiver to Remove Conditional Resident Status,” Immigration and Nationality Handbook 2000-01 Edition, AILA.

20Under the Power and Control Wheel, describing non-physical forms of domestic violence, one example used is the failure of the citizen spouse to file papers to legalize immigration status, or withdrawing or threatening to withdraw papers filed for residency.

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

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.