Thursday, July 23, 2009

New field guidance on Petitions to Remove Conditional Permanent Resident Status

The USCIS has issued new guidance to the field on the proper handling and adjudication of I-751 petitions to remove the conditions on permanent resident status. Conditional permanent resident status is attained when a foreign national marries a U.S. citizen. Permanent residence (green card) is granted for only a two year “conditional” period. As the end of the period approaches, a petition must be made to remove the conditions from the status so that unconditional permanent resident status can be achieved. (The petition must be filed within the 90 day period preceding end of the two year conditional residence period.)

The petition that is filed is a joint petition – jointly filed by the U.S. citizen spouse and the conditional permanent resident.

Not all marriages last the full two years and so there is a route by which the joint aspect of the petition filing may be waived. In such a case, the conditional permanent resident can file solely (so long as s/he can evidence that the marriage was entered into in good faith).

But in instances where the couple was separated or in divorce proceedings during that very small 90 day filing period and where the U.S. citizen spouse would not agree to jointly file the petition to remove conditions, then the conditional permanent resident was in a jamb. If the petition was filed solely, it would be denied. If the petition was not filed, the conditional permanent resident fell out of lawful status.

Now, with this new Field Guidance, the USCIS addresses this conundrum, but only to partial satisfaction.

According to the Guidance, in cases where the couple is separated or in divorce proceedings, the conditional permanent resident may file the petition solely. Then, upon seeing the lack of a divorce and the lack of a joint petition, the USCIS will issue a Request for Evidence (RFE) with a response deadline of 87 days. The RFE will request proof of a final divorce. The thought process of the USCIS is that the 87 days should be sufficient for “many cases” to complete the divorce. In cases where the final divorce can be shown, the case will then be adjudicated according to the merits.

But what if the couple has not yet achieved a final divorce decree in 87 days? In such a case, the petition is denied and the matter referred for issuance of a Notice to Appear (NTA). The NTA means that the conditional permanent resident must appear before an Immigration Judge to argue that s/he should not be removed (aka deported) from the country. In its Field Guidance, the USCIS opines that, in many cases, the divorce will be complete by this time and the conditional permanent resident will then be eligible for relief and the granting of unconditional permanent resident status. The Field Guidance does not offer any assistance to those whose divorce is not final in time.

The Field Guidance goes on to further add that, even in cases where the petition is filed jointly, if the USCIS examiner sees that the couple are separated or in divorce proceedings, then an RFE will be issued with an 87 day response time. If the divorce has become final during this time period, then the conditional permanent resident can have the case converted to a waiver case (waiver the joint filing requirement.) The case is then adjudicated based on its merits.

It is clear from this Field Guidance that, in cases where there is a separation and/or divorce proceedings, the USCIS wants to take extra case to determine whether the marriage was entered into in good faith. The system of a two year conditional permanent residence status was established to alleviate marriage fraud. The USCIS is now demonstrating that actions toward ending a marriage that occur so close to the end of the two year period will receive extra scrutiny.

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