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Terminating Conditional Residence: What Becomes Of The Brokenhearted?

by Charles Wheeler

Conditional residents are a strange hybrid: in one sense they possess all the rights and benefits of other lawful permanent residents (LPRs), but in another sense they must deal with additional hurdles thrown in their path. These obstacles were enacted in 1986 in an effort to address the perceived problem that multitudes of people were entering into sham marriages in order to gain permanent residence. But the premise of the Immigration Marriage Fraud Amendments (IMFA) was later disproved, and as a result many of IMFA's harshest provisions were watered down or repealed. What we are left with now is a bureaucratic maze filled with rules, exceptions, and changing policies. At a minimum, the conditional residency requirements involve additional paperwork and delays; at worst, confusion and unnecessary distress leading, in some cases, to deportation or abandonment of residency.

In the simplest of cases, conditional residents must file a separate "joint petition" to remove the conditional status two years after immigrating or adjusting, and then wait for the USCIS to approve the I-751 petition and issue a new green card valid for a full ten years. But many conditional residents face special dilemmas due to their failure to file on time, their being a victim of domestic violence, or their being in a marriage that is quickly deteriorating. Can they still file a joint petition if they are separated? Can they file under the good faith/divorce waiver if the divorce is not yet final? If not, should they file late, or should they file under some other waiver?

A two-year old memo from the USCIS Acting Associate Director that overturned 16 years of practice, and a recent string of memos from the Nebraska Service Center each reversing or modifying the other, illustrate the disarray and divergent thinking within the federal agency that interprets this law. If they can't get it right, is it any wonder conditional residents are experiencing difficulty? This article will attempt to provide guidance and answers to some of the basic questions so that practitioners can better assist their clients in these situations.

Who are conditional residents? Conditional resident status is imposed on aliens who marry U.S. citizens and then, based on that marriage, obtain LPR status within two years. The LPR's children are also conditional residents if they adjust or immigrate based on and within two years of the parent's marriage to a U.S. citizen. At the end of the two-year conditional residence period, these aliens must file a petition (Form I-751) in order to remove the condition and preserve their permanent resident status.

Timely filing. All conditional residents must file an I-751 within the 90-day period before their conditional residence expires, which is two years after they adjust or immigrate. If they fail to meet that deadline, the USCIS "shall terminate the permanent resident status." But that doesn't mean they have no relief available. They should still file a late petition, no matter how late it is and no matter what the reasons. The statute provides for the granting of petitions if the tardiness is due to "good cause and extenuating circumstances." But in reality, the agency has been relatively lenient in accepting late applications. The worst that can happen is that the USCIS denies the application and the alien is placed into removal proceedings. There, an immigration judge adjudicates the I-751 de novo (without regard to the USCIS's decision), and the lateness of the filing is irrelevant. However, the immigration judge can only adjudicate I-751's that have first been filed with the USCIS. So always file an I-751 with the USCIS to preserve your client's rights.

Joint petition. In the easy cases, the husband and wife are still married and file the I-751 as a joint petition within the required period. The conditional resident will check box "a" in Part 2 of Form I-751, and both spouses will sign in Part 5 (the second Part 5) of the form. On the Form I-751, both spouses must declare under penalty of perjury that: (1) they were married in accordance with the laws in the jurisdiction where the marriage took place; and (2) they did not enter into the marriage to procure an immigration benefit. They will file documents establishing the bona fide nature of the marriage, such as birth certificates of children born of the relationship; mortgages, lease agreements, or utility bills showing both parties reside together; financial statements showing the couple has shared their income, assets, and liabilities; photos, letters, and other proof of their courtship and marriage; and any other pertinent information.

Processing delays. The four service centers are currently taking between two months and one year to adjudicate the I-751 petitions. This is quite an improvement over the situation just six months ago. The processing times for each are as follows: California Service Center (2 mos); Vermont Service Center (4 mos); Texas Service Center (3 mos); and Nebraska Service Center (12 mos). These times do not include additional delays if the file is sent to the local district office for interview and adjudication; some local districts have long I-751 backlogs. Waivers of the joint petition requirement are more likely to be scheduled for an interview, as are I-751s where the parties are no longer residing together.

Failing marriages and good faith/divorce waiver. The hard cases are those where the parties are separated or not getting along. If the parties are still married, even though they may be living apart and contemplating divorce, they can still file a joint petition. The key is whether they are cooperating with each other. There is no requirement that it be a viable marriage at the time the I-751 is filed or adjudicated; the requirement is that the marriage not be terminated and that it was entered in good faith. Ask your client whether it is likely that the U.S. citizen spouse will sign the joint petition and show up for an interview in the future. If so, consider this as the first option.

If the parties have already filed for divorce, or if they are not cooperating, then the conditional resident will likely need to file under one of three waiver options. They are: (1) the marriage was entered in good faith, but the marriage has been terminated by divorce or annulment; (2) the marriage was entered in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or (3) termination of permanent residency and deportation would result in extreme hardship. Although Form I-751 indicates that the conditional resident must elect one of the possible grounds for a waiver, the legacy INS stated at one time that the choices were not mutually exclusive. In other words, the conditional resident should be able to claim, for example, both the battered spouse and the extreme hardship grounds. I have heard recently, however, that some USCIS adjudicators are requiring the applicants to file under only one waiver option.

Applicants requesting a waiver can file the I-751 at any time, either before or after the two-year conditional residence period has expired (though they are required to file at least an initial I-751 at the end of their two-year conditional residency). But it is unusual for the conditional resident to file the waiver prior to the end of the two-year period, except in cases where the marriage has ended due to the death of the U.S. citizen spouse. If the parties divorce before the two-year conditional residence period is over, the LPR's status is technically terminated at that point. But the USCIS will rarely initiate an investigation before that time or discover through outside means that the marriage has ended. If you have a U.S. citizen spouse who is acting particularly vindictive, and who is threatening to contact immigration officials, I recommend filing the good faith/divorce as soon as the divorce is final, even if the two-year period has not run.

It used to be that the conditional resident who had commenced divorce proceedings could file under the good faith/divorce waiver, even though the divorce was not yet final. In those situations, the alien would state that the divorce is pending and request that the I-751 be adjudicated, and any interview continued, after the divorce becomes finalized. The USCIS no longer allows this. On April 10, 2003, the Acting Associate Director of Operations issued a memo clarifying that the marriage must be officially dissolved before the conditional resident may apply under this waiver.

The practical effect of this change in policy has been to force conditional residents to file the timely I-751 under one of the other two waiver grounds: battered spouse or extreme hardship. Then amend the I-751 once the divorce is final and re-file under the good faith/divorce ground. The alien will need to file a new I-751 with the Service Center and pay another $200 filing fee.

NSC Missteps. It is not unusual for the conditional resident to start out with a joint petition and then later change it to a waiver petition, based on a lack of cooperation by the U.S. citizen spouse or the entry of a final divorce. In a December 27, 2004 memo (NSC Flash #6-2005) the Nebraska Service Center advised applicants to notify the NSC if they had filed a joint petition but subsequently separate. The NSC would then forward the file to the local district office to schedule an interview. The NSC did not insist on the filing of a new I-751; the joint petition could still be adjudicated as long as the marriage had not been terminated. But if the couple filed a joint petition and subsequently divorced, the NSC reminded the alien that he or she must submit a new I-751 under the good faith/waiver ground. The same procedure would presumably need to be followed if the alien started out filing under one waiver ground (e.g., battered spouse or extreme hardship) and then obtained a final divorce. If he or she wanted the waiver adjudicated under the relatively easy good faith/divorce standard, then the alien would need to file a new I-751 claiming that ground.

Regrettably, the NSC memo went on to directly contradict the April 10, 2003 USCIS central office memo by advising conditional residents to file under the good faith/divorce waiver if they were merely separated at the time they needed to file an I-751. This inconsistency was partially remedied in a second memo dated March 30, 2005 (NSC Flash #18-2005) where the NSC stated that if the parties "are separated or have initiated divorce proceedings at the time the I-751 should be filed, the beneficiary is not eligible to file for either a joint petition or a waiver of the joint filing requirement due to divorce." But while conforming with the official policy prohibiting filing under good faith/divorce waiver until the divorce is final, it directly contradicted official policy allowing the filing of a joint petition if the parties are merely separated or have recently filed for divorce. To make matters worse, it ended the memo with the warning that "an alien's status may be terminated because they (sic) are unable to file a timely Form I-751, or they may be placed in removal proceedings." The implication was that conditional residents who are separated or in the process of divorcing at the end of their two-year conditional residency period are left without a legal remedy and are looking at possible deportation.

Expectations were running high that the third NSC memo (NSC Flash #19-2005) dated April 11, 2005, was finally going to get it right. The last bulleted paragraph restated current official policy: couples who are separated or have initiated divorce proceedings may still file a joint petition at the end of the conditional residency period. But for those conditional residents who cannot file a joint petition due to the U.S. citizen's failure to cooperate, the NSC indicated that the alien has only two options: (1) file a timely waiver based on being a battered spouse, or (2) file a good faith/divorce waiver presumably late once the divorce is final. The memo ends with the same warning that failure to file a timely I-751 will result in deportation proceedings.

What is missing from the memo, of course, is an explanation about the extreme hardship waiver and the need to file under one of the three waiver options before the end of the conditional residency. Conditional residents who do not qualify as battered spouses and who have not obtained a final divorce from their estranged spouse are still left thinking that they do not qualify to file a timely I-751 and will soon face deportation. These NSC memos are misleading conditional residents and their representatives into thinking that their options are more limited than they are.

Battered Spouses. The 1990 Act added an important option for spouses who have been the victims of battery or other forms of spousal abuse. These persons can now file for a waiver of the joint petition requirement based solely on this ground. Abused spouses have the option of either pursuing divorce or remaining married and removing their conditional status through the battered spouse waiver.

The statute allows for this waiver if "during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetuated by his or her spouse or citizen or permanent resident parent..." In other words, the conditional resident spouse may apply under this waiver if either the conditional resident or the conditional resident's child has been abused by the citizen spouse/parent.

Regulations implementing the battered spouse waiver further define the statutory terms and set forth the requirements for being granted the waiver. The regulations clarify that the waiver is available to conditional residents, regardless of their current marital status. In other words, they may still be married and living with the abusing spouse, may be separated, may be divorced, or may be in the process of seeking a divorce. To be eligible for the waiver, the alien must not have departed the United States after his or her conditional resident status ended.

Acts that constitute battery or extreme cruelty include, but are not limited to, "any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury." Acts of violence include "psychological or sexual abuse or exploitation, including rape, molestation, incest [if the victim is a minor] or forced prostitution."

If the alien is alleging physical abuse, the alien can submit any credible evidence. This "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." It is not clear whether the applicant's affidavit, standing alone, would satisfy this requirement, but presumably it would as long as it was credible.

In the regulations, the agency limits "extreme cruelty" to that which qualifies as "extreme mental cruelty." The agency also requires waiver applicants alleging extreme cruelty to furnish independent evidence from "a professional recognized by the [USCIS] as an expert in the field." In the regulations, only licensed clinical social workers, psychologists, and psychiatrists fit that definition. The evaluation, as well as the waiver petition itself, must contain the professional's name, address, identification number, and the date his or her professional license expires. However, other guidance from the agency explains that the original VAWA statute prohibits this extra requirement. Instead, "credible evidence" is the standard for both physical abuse and mental cruelty, and this evidence is not limited to statements from specific categories of professionals.

The statute requires that the USCIS keep information contained in the waiver petition or supporting documents in strict confidence. It may not release the information to any party without a court order or the written consent of the alien. Information may be released only to the applicant, his or her authorized representative, an officer of the USCIS, or any state or federal law enforcement agency.

Finally, the statute requires that the battered spouse not have been "at fault in failing to meet the [joint filing] requirement." This clause seemed at first to impose a "no fault" requirement i.e., the battered spouse could only take advantage of this waiver if he or she were not at fault for causing the abusive action by the other spouse. But the regulations do not impose such a requirement, and to date the USCIS has not interpreted this provision as requiring any further proof of eligibility. Therefore, it is unclear what, if any, meaning is to be placed on this statutory language.

Extreme hardship waiver. The conditional resident who has run out of other options may request a waiver of the joint petition requirement based on "extreme hardship." Although the statute is silent about whom the extreme hardship must affect, the USCIS has stated that the conditional resident may file for this waiver based on hardship either to himself or herself, to children of the marriage, or to a new spouse. The statute and regulations state that the USCIS shall take into account only factors that arose after the alien's entry as a conditional resident. For example, the USCIS presumably will not consider a preexisting medical problem that requires care and treatment in the United States. But medical problems that developed after the conditional resident entered the U.S. would be relevant, as would adverse political, social, or economic conditions that have developed recently in his or her home country.

The USCIS recognizes that any removal is likely to result in a certain degree of hardship; only in cases where the hardship is "extreme" will it grant the waiver. Case law developed in the context of applications for the former relief of suspension of deportation or for waivers of inadmissibility are relevant in defining what "extreme" means in the context of joint petition waivers. According to those cases, extreme hardship consists of something more than the hardship that persons would ordinarily experience upon being deported, e.g., the emotional strain that accompanies relocating, separation from family and friends, and economic loss.

The Board of Immigration Appeals (BIA) has listed 10 criteria that it considers relevant in determining whether the hardship an alien would suffer is extreme enough to meet the standard for granting suspension of deportation. These include the following: (1) the alien's age; (2) the alien's ties to family in the U.S. and abroad; (3) how long the alien has resided in the U.S.; (4) the alien's health; (5) economic and political conditions in the alien's home country; (6) the alien's occupation and work skills; (7) his or her immigration history; (8) his or her position in the community; (9) whether the alien is of special assistance to the U.S. or to the community; and (10) whether the alien could adjust status by alternate means.

Aliens with health problems that would not receive adequate treatment in the alien's home country have been particularly successful in establishing that extreme hardship makes them eligible for suspension of deportation. By itself, the probability that an alien will suffer economic detriment is usually not enough to meet the standard for establishing extreme hardship, unless the alien can show that it will be impossible for him or her to find work in the home country. But when economic hardship is combined with advanced age, illness, or family ties in the United States, the USCIS is more likely to find that the alien faces extreme hardship. The practitioner should thus carefully consider all possible equities in a case, especially those that demonstrate a special hardship. An unusually strong factor, together with more typical hardships such as psychological suffering, loss of ties in the community, and separation from family, will be very helpful in meeting the test for extreme hardship.

Neither the statute nor regulations require a showing of the bona fides of the marriage in order to be granted the extreme hardship waiver, though it is recommended that the applicant present such evidence of good faith if it is available. Don't expect spouses who knowingly entered into a sham marriage to ever be granted this waiver, even if they establish extreme hardship.

About The Author

Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic Legal Immigration Network (CLINIC).

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