I-751 Petition for Removal of Conditions on Conditional Residence, Immigration Marriage Fraud Amendments of 1986

Immigration Marriage Fraud Amendments of 1986: I-751 Petition to Remove the Conditions of Residence on Permanent Resident Status.

References: Section 216 of the Act

8 CFR 216

(a) General . The Marriage Fraud Amendments of 1986 (“IMFA”) were enacted in response to a growing concern about aliens seeking permanent residence in the U.S. on the basis of marriage to a citizen or resident when either the alien acting alone, or the alien and his or her reputed spouse acting in concert, married for the sole purpose of obtaining permanent residence. Congress was particularly moved by the testimony of numerous citizens whose alien spouses had left them shortly after obtaining residence, as well as the testimony of Service representatives concerned with “marriage for hire” schemes. Congress also acknowledged the inherent difficulties faced by the Service in determining whether the marriage is fraudulent and whether the alien intended to leave the marital union once lawful permanent residence was granted.

In response to these concerns, Congress passed IMFA, which added section 216 to the Immigration and Nationality Act. Section 216 created a conditional residence requirement for aliens who acquire permanent residence based on recent marriages. The condition being that persons subject to the provisions of IMFA were required to petition the Service two years after obtaining residence for removal of the conditional basis of the residence. Failure to do so, or denial of the removal petition, would result in the alien losing residence status and being removed from the U.S. as a deportabl e alien. Section 216 also includes a waiver provision because it recognizes that under certain circumstances (e.g., if the marriage had dissolved through no fault of the alien), the alien’s loss of residence and deportation from the U.S. would be inappropriate.

The conditional residence provisions of section 216 apply to:

• Any alien who, based upon a marriage to either a citizen of the U.S. or a lawful permanent resident of the U.S., obtains permanent residence within two years of such marriage (i.e., as a spousal Immediate Relative or second preference classification); and

• Any child of such alien who also obtains permanent residence through his or her parent’s marriage within 2 years of the marriage.

Note: Confusion can arise regarding to whom a reference is being made (especially in spousal second preference conditional residence situations due to both parties, husband and wife, being aliens). In order to clarify which party is being referred to, the alien who is subject to the IMFA conditions is known as a “conditional permanent resident,” while the citizen or LPR who had filed the I-130 petition on behalf of such alien is known as the “petitioning spouse.”

The section 216 provisions do not apply to:

• An alien who obtains permanent residence through a marriage which is more than two years old at the time of admission or adjustment;

• An alien who obtains permanent residence on a basis other than marriage (e.g., a woman who adjusts through an employment-based petition, even if she is married to a citizen at the time);

• An alien who (regardless of the age of the marriage at the time) obtains permanent residence as an accompanying or following to join dependent of an alien who obtains residence under:

– a special immigrant classification;

– a refugee or asylee classification;

– a preference classification other than second preference;

– any other provision of the Immigration and Nationality Act, or any other law, which allows dependents to accompany or follow to join a principal alien.

Note: It is extremely important that inspectors and adjudicators be very conscious of the date of the marriage at the time the alien is admitted or adjusted. It is not unusual for an alien to be issued a conditional resident immigrant visa by a consular officer shortly before the second anniversary, but to apply for admission after that second anniversary. Likewise, an applicant for adjustment might file a Form I-485 (or even be interviewed regarding such application) prior to the second anniversary, but not be granted adjustment until after that second anniversary. In such cases, the alien should be admitted, or adjusted, without conditions (see 8 CFR 235.11(b) regarding the authority of inspectors to amend the visa classification on an immigrant visa in such situations).

(b) Notification Requirements . The Marriage Fraud Amendments of 1986 require that a conditional permanent resident be notified of his or her obligations under the law at specified points:

• At the time an alien acquires conditional permanent residence through admission to the U.S. with an immigrant visa or adjustment of status under section 245 of the Act, the Service shall notify the alien of the conditional basis of the alien's status. The Service will notify the alien of the requirements for removal of the conditions within the ninety days immediately preceding the second anniversary of the date the alien was granted status, and will inform the alien that failure to apply for removal of the conditions will result in automatic termination of the alien's lawful status in the U.S. This notification is done (either verbally or in writing) by the inspector or adjudicator who admits or adjusts the alien to conditional resident status .

• Approximately 90 days before the second anniversary of the date on which the alien obtained conditional permanent residence, the Service must (attempt to) notify the alien a second time of the requirement that the alien and petitioning spouse must file a petition to remove the conditional basis of the alien's lawful permanent residence. The notification will be mailed to the alien's last known address. However, failure on the part of the Service to provide notification (which can occur, for example, if the alien fails to notify the Service of a change of address) does not relieve the alien and the petitioning spouse of the requirement to file a joint petition within 90 days preceding the second anniversary date of the alien's conditional status. This notification is done on an automated basis by the Immigration Marriage Fraud Amendments System . (This system is known in some offices as IMFAS (“im-FASS”) and in others as MFAS (“MAY-fiss”).)

(c) Filing for Removal of Conditions . There are two vehicles through which the conditional basis of residence may be removed:

(1) Joint Petition . Within the 90-day period immediately preceding the second anniversary date on which the alien obtained permanent residence, the alien and the petitioning spouse must file a Petition to Remove Conditions on Residence (Form I-751) with the Service Center having jurisdiction over the alien's place of residence. Normally, a conditional resident child is included in the joint petition filed by his or her parent and step-parent. The joint petition must be filed within this 90-day window regardless of the amount of physical presence which the alien has accumulated in the U.S. The one exception to this rule is that if either the alien or the petitioning spouse (or both) is outside the U.S. on U.S. government orders, the filing window does not commence until the person(s) on orders returns to the U.S.

(2) Waiver . The conditional permanent resident, acting alone, may apply (also on Form I-751) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5 .The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Note : The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)

(d) Ineligibility for Adjustment of Status . Under section 245(d) of the Act, an alien who is a permanent resident on a conditional basis under section 216 of the Act is not eligible for adjustment of status under section 245(a) of the Act. The implementing regulation is 8 CFR 245.1(c)(5) . In Matter of Stockwell , 20 I & N Dec. 309 (BIA 1991), the Board of Immigration Appeals adopted a narrow interpretation of 8 CFR 245.1(c)(5) . Under this narrow interpretation, the prohibition against adjustment of status no longer applies if USCIS has terminated the alien's conditional LPR status. In 1996, the Attorney General proposed an amendment to the regulation, so that a conditional permanent resident would remain ineligible for adjustment of status even after termination of conditional LPR status. 61 Fed . Reg . 43,028 (1996). Until the Department of Homeland Security publishes a final rule, and the final rule enters into force, however, USCIS officers are bound to follow Matter of Stockwell . If an officer has a case in which an alien whose conditional LPR status has been terminated is seeking adjustment of status under section 245, the officer should consult with district or service center counsel concerning whether the 1996 proposed rule has been made a final rule.

(e) Documentation .

(1) Joint Petition . A Form I-751 being filed as a joint petition shall be accompanied by evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S. Such evidence may include:

• Documentation showing joint ownership of property;

• Lease showing joint tenancy of a common residence;

• Documentation showing commingling of financial resources;

• Birth certificates of children born to the marriage;

• Affidavits of third parties having knowledge of the bona fides of the marital relationship (Note: the affiant must be available to appear at the joint petitioners’ interview if required); or

• Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the U.S.

(2) Waiver . A Form I-751 being filed as a waiver application shall be accompanied by:

• Evidence to establish the facts of the case on which the alien is seeking the waiver; and

• Evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S., as described in paragraph (1), if the marriage was not entered into for such purposes. However, be aware that the extreme hardship waiver provision does not require that the applicant establish that the marriage was entered into in good faith.

(f) Termination of Status for Failure to File . Failure to properly file Form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent residence status and the initiation of proceedings to remove the alien from the U.S. Form I-751 may be filed after the expiration of the 90-day period only if the alien establishes to the satisfaction of the director, in writing, that there was go od cause for the failure to file within the required time period.

(g) Adjudication of the Joint Petition .

(1) Determination of Credibility of Evidence . [Section (g)(1) updated 06-20-2006] The director of the regional service center shall review the Form I-751 filed to determine whether to waive the interview required by the Act.

(a) Waive Interview and Accept . If satisfied that the marriage was not for the purpose of evading the immigration laws, the director may waive the interview and approve the petition.

(b) Waive Interview and Deny . If after examining the evidence submitted with an I-751 petition, the Service Center Director finds that the case presents substantial and undisputed evidence that the marriage was to circumvent the immigration laws, the Service Center Director shall deny the case.

(c) Interview Necessary . In cases where an interview is deemed useful for the adjudication of I-751 petitions, the Service Center Director shall forward the petition, along with the assigned fraud level, to the district director having jurisdiction over the place of the alien's residence.

(2) Assigning Fraud Levels . [Section (g)(2) updated 06-20-2006] If an interview is deemed necessary, the case is sent to the Service Center's Adjudications Unit and given to an adjudicator to assign a fraud level. The fraud levels of A, B, and C are assigned to the I-751 based on the documentation submitted with the application. If the adjudicator is fully satisfied that the case is approvable, then a fraud level of C is assigned. If the adjudicator is less than fully satisfied, but still feels that (based on the information available at the time) the case can be approved, then a fraud level of B is assigned. If the adjudicator has serious concerns about the approvability of the case and/or wants the applicant and the spouse to be interviewed, then the case would be assign ed a fraud level of A.

· Reasons for Assigning Fraud Level C. If you assign a fraud level C, it means that there are no technical problems (signatures, missing information, lack of evidence, etc.) and you think the case is approvable (no interview necessary). All required supporting documents are attached and there is no indication of fraud that can be identified in the documents or through the biographic data of the parties involved.

· Reasons for Assigning Fraud Level B. Fraud level B cases are those cases which have no technical problems that need correction and have the minimum number of proper supporting documents, but there is something, or an absence of something (which you may or may not be able to articulate) that creates suspicion about the bona fides of the marriage, the veracity of the evidence, etc. The reasons for suspicion are so varied that a concise list cannot be made. An example would be where the I-751 is supported by t he minimum required number of documents, however the documents are all of recent origin. Remember, though, that a level B case will be approved if the computer randomly does not assign the case to an interview slot, so do not assign a fraud level B if the application and /or supporting documents are insufficient to approve the case.

· Reasons for Assigning Fraud Level A. Fraud level A should be assigned when the adjudicator strongly suspects fraud. Reasons fraud level A might be assigned include:

- the petitioner fails to sign the form;
- there is insufficient evidence;
- a large age difference exists between the spouses;
- the married couple is not living together;
- a prior I-751 was denied;
- the petition was filed untimely without a good reason for being late; or
- any other reasons as the service center director may determine.

Note: The service center adjudicator must indicate when fraud is suspected, rather than a technical omission, to alert the Fraud Detection and National Security (FDNS) Immigration Officer at the District Office.

(3) Entering Cases in the Computer . Once the fraud level is determined, the adjudicator enters the case in the MFAS data base. The district office assigns a percentage to each fraud level. All fraud level A cases are interviewed. The responsible officer (usually the ADDE) in the district offices may choose to interview between 30% to 100% of all fraud level B cases; and between 10% and 50% of all fraud level C cases. After the case is entered in MFAS, the adjudicator enters the fraud level and the computer determines if the case will be sent for interview depending on the percentage of cases the district office wants to interview.

Note: As of May 25, 2001, users of the Marriage Fraud Amendment System (MFAS) can set up their interview schedules up to six months in advance. Additionally, MFAS will now allow users to delete dates from the Interview Calendar, even if there are cases scheduled for that date. Those cases will automatically return to the "Ready for Interview Scheduling" status.

(4) Types of Cases . The following is a breakdown of the Marriage Fraud cases after adjudication by the service center adjudicator, as indicated in the MFAS support system:

(A) Case Granted . These are cases for which MFAS has determined that an interview is not needed after the adjudicator entered the fraud level. The case is stamped with the adjudicator's approval stamp and routed to an application clerk who sends out the approval notice.

(B) Scheduled for Interview . If the computer determines that an interview is required, the MFAS automatically slots the petitioner into an available time slot for the district where the petitioner lives. If all available interview slots are filled for the district office, then a "no schedule" phrase is issued. As soon as an interview time is available, they will be slotted into it. Special care should be taken to verify the address and zip code because the interview site is chosen based on the zip code entered from the I-751 .

(C) Overseas Holds . These are cases where the petitioner and/or spouse live outside the U.S. The case is held pending until the return of the petitioner and/or spouse for a U.S. address to be entered into the computer. Once a U.S. address is known the case can be entered into the computer to see if an interview is required.

Form I-751s filed by Conditional Permanent Residents ( CPRs) who are currently overseas pursuant to military or government orders and who have valid APO/FPO addresses are not automatically placed on an “ overseas hold .” Instead, the director will review the Form I-751 and supporting documentation filed by the CPR and his or her spouse to determine whether or not to waive the interview requirement.

(D) Terminations . These cases are denied for failure to file. They are put in a 60 day call-up category to give the petitioner and spouse a last chance to file the Form I-751 . If they have not filed after the 60 day call-up time frame has expired, the case is routed to the district office for a Notice to Appear to be issued.

(E) Improperly Classified . These are cases where the petitioner (conditional permanent resident) was incorrectly classified when he/she entered the U.S. (generally because the inspecting or adjudicating officer failed to notice that the alien had been married for at least two years at the time the alien was admitted to the U.S. as a permanent resident or adjusted his/her status to that of a permanent resident). When the adjudicator of the Form I-751 determines that the alien was improperly classified as a conditional resident, the adjudicator should issue the individual a letter telling the alien that he/she was incorrectly classified and advising him/her to go to a district office to file an I-90 for issuance of an I-551 at no cost. The Form I-751 is also processed for a fee refund on Form G-266, and the Form I-751 is counted as a “statistical denial.”

(F) Battered Spouse . The battered spouse's address is verified and then the case is sent to an adjudicator. The address is verified so that notices are not sent to the wrong person. After updating in the computer the case is sent to a District office for interview.

(G) OASIS Flag . [(b)(2) or (b)(7)(E)]

(5) Inability of Child to Be Included in Joint Petition . As a matter of administrative convenience, the regulations allow a conditional resident child who is unable to be included in his/her parents’ joint petition to file an separate Form I-751. (This could also be thought of as a hardship issue since otherwise the child would be separated from his or her parent, but the child filing such petition need not document extreme hardship.) Circumstances under which this situation might arise include:

• A child whose conditional resident parent has died;

• A child who entered the U.S. more than 90 days after his conditional resident parent and therefore does not have sufficient residence in the U.S. to qualify for removal of conditions on the joint petition (but verify that the parent and step-parent’s joint petition has been granted before approving the child’s petition); and

• Any other circumstances whereby in the determination of the director, the child is prevented from being included in the joint petition of his or her parent and step-parent through no fault of the child or his or her parents.

In adjudicating the separate petition of a child, you must be satisfied that the conditional residence status was not obtained through fraud and that the petition’s approval would not further a fraud scheme. For example, you would not approve a separate petition filed by a child which would enable an otherwise ineligible parent (who obtained conditional status through a questionable marriage) to make a stronger case for an extreme hardship waiver.

h) Waiver of Joint Filing .

These are cases where the petitioner and the spouse do not file a joint petition. They are usually filed because the petitioner and spouse are divorced, or the petitioner (child of the conditional spouse) could not enter or follow to join the conditional spouse. The documentation to be submitted, and the factors to be determined in the adjudication process, depend on the type of waiver being sought. Section 216(c)(4) of the Act allows an alien to file a waiver application under one (or more) of three circumstances: extreme hardship (section 216(c)(4)(A) ), good faith and not at fault (section 216(c)(4)(B) ) , and battering or extreme cruelty (section 216(c)(4)(C) ). Note: Although section 216(c)(4) is entitled “Hardship Waiver”, only waivers under paragraph (A) require that the applicant establish a level of hardship; waivers under the other two paragraphs depend on other issues.

(1) Extreme Hardship . The waiver applicant must establish that extreme hardship would result if he or she is removed from the U.S . Some important things to remember when adjudicating a waiver filed on this basis are:

• There is no requirement that the applicant establish that the marriage had been entered into in good faith. However, indications that the marriage had been in bad faith may be considered when weighing the discretionary factors.

• Whether the alien has already suffered hardship during or prior to his or her status as a conditional resident is irrelevant. Only extreme hardship which would result from deportation (presumably to the alien’s home country) is pertinent. The statute is prospective, not retrospective, in this regard. However, in some situations hardship already experienced can have a bearing on hardship which an alien might expect to experience if he or she is removed. For example, in some countries, a woman who has been di vorced may suffer extreme isolation (“shunning”) in her home country or culture which rises to the level of persecution. While such conditions may be rare, they are definitely not non-existent.

• Because the adjudication of a waiver application is a matter of discretion, factors which are not directly related to the marriage fraud provisions may be taken into account. However, only the most significant negative factors would justify denial of an application where the applicant has sufficiently established that he or she would be subjected to extreme hardship if deported. As with any adjudication proceeding, the applicant bears the burden of proof to establish eligibility for the benefit sought.

(2) Good Faith, Not at Fault . Despite the best intentions, marriages do not always work out, and sometimes even bona fide marriages fall apart in less than 2 years. IMFA was not meant to be a tool to be used against unlucky or unlikely marriages; it was meant to be a tool against fraud. Accordingly, IMFA provides for a waiver if the alien can establish that he or she entered the marriage in good faith and he or she was not at fault in failing to meet the IMFA requirements. Things to consider when adjudicating this type of waiver inclu de:

• Weight is not given to who filed the divorce. (Initially, the statute required that the alien had to be the moving party in the proceedings to terminate the marriage (i.e., that the alien had terminated the marriage for “good cause”). This occasionally resulted in what became known as “the race to the courthouse.” Since the issue was meant to center on whether the alien had good faith when immigrating, not on whose attorney could file for divorce faster, this requirement was dropped.)

• It does not matter if the conditional resident’s spouse entered the marriage in good faith, only the intent of the conditional resident him or herself is relevant. Interviewing the conditional resident’s former spouse (either in response to a call-in letter, a field examination or a referral to Investigations) may provide relevant and valuable information on the alien’s intent, or it may only result in a spiteful diatribe. Adjudicators should always be aware of the source and motivation of information provi ded. Also, when interviewing a former spouse, always be extremely careful not to divulge any information (such as the alien’s current location) which could result in the alien being subjected to abuse or battering.

• In determining good faith, it is usually helpful to look at the actions of the parties following immigration to the U.S. The same clues which can be useful in an ongoing marriage (e.g., did they establish joint bank account, were health insurance issues coordinated, etc.) are valuable indications of a fraudulent marriage. Perhaps assets which were commingled at the beginning of the marriage would have just been divided at the end. Reviewing the property settlement, which usually accompanies the divorce decr ee, may provide valuable information.

• The statute requires that the alien establish that he or she “was not at fault in failing to meet the requirements” for filing a joint petition for removal of conditions. This should not be read as requiring that the alien’s divorce decree finds his or her spouse to have been at fault, nor does it require that the divorce was obtained on a no-fault basis. You still might determine that the alien was wholly or partly responsible for not meeting the joint petitioning requirements. Likewise, a divorce decree s tating that the alien was “at fault” (with regards to the breakup of the marriage) does not preclude you from independently determining that he or she was not at fault, at least with regard to the requirements of the immigration law.

As the adjudicator, you must make your own determination on this issue. While the language of the divorce decree may provide useful information on the reasons why the marriage was terminated (and therefore why a joint petition was not possible), and may even significantly increase the alien’s burden of proof, the decision on whether to grant the waiver belongs to the Service, not to the divorce court judge. Remember that in the worst marriage fraud cases, the parties to the fraud would agree in advance that the alien would file for divorce and that the petitioning spouse would accept fault for the breakdown of the marriage.

• The statute uses the phrase “has been terminated” when talking about the marriage. As such, an alien whose conditional resident status is approaching the 2-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 based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or sh e may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genc o Opinion 96-12) .

(3) Battering or Extreme Cruelty . The original IMFA (as enacted in 1986) did not contain a separate waiver provision for victims of battering or extreme cruelty. Although in most cases, such victims could easily qualify for either of the two waiver provisions, Congress found that there was a need to spell out that victims of such treatment are entitled to special consideration under the law. As a result, section 216 of the Act was amended by section 701 of the Immigration Act of 1990 to add this waiver. It is important that in adjudicatin g such waiver applications INS officers are aware of and in accord with the views of Congress in passing this legislation. Other issues to bear in mind when adjudicating a battering or extreme cruelty waiver include:

• Persons who have been subjected to such treatment may have difficulty in discussing their experiences. While it is almost always necessary to discuss the abusive events with the applicant, such discussions should be carried on in a professional manner which does not further abuse the applicant by forcing him or her to unnecessarily re-live abusive episodes.

• Police reports and hospital records can be key documents in establishing that battering or extreme cruelty existed, but not all cases of abuse contain these items. Officers must be prepared to accept and evaluate other, less traditional, forms of documentation. Conversely, in the worst marriage fraud cases it is not unheard of for evidence of abuse or battering to be fabricated (someone who is willing to commit marriage fraud would not be unwilling to file a false police report).

(i) Interview at the Local Office . Unless waived, an interview shall be conducted by an immigration adjudicator or other officer at the district office, files control office or suboffice having jurisdiction over the joint petitioners’ residence.

(1) Joint Petition . An interview based on a joint petition is used to determine the bona fides of the marriage. As such, it is quite similar to an interview conducted in relation to a pending I-130 petition or a (marriage-based) adjustment application. (See Chapter 21.3 and Chapter 23 of this field manual, resp. General interview techniques and procedures are also discussed in Chapter 15 of this field manual.)

It is important to remember that the only issues being resolved through the I-751 interview process are those relating to the bona fides of the marriage and the removal of conditions. Should any other issues arise, they must be dealt with outside the I-751 interview and adjudication process. (Since there is no discretionary authority to be exercised when adjudicating a joint petition, the other factors have no bearing on the case at hand.) For example, if during an I-751 interview you determine that you hav e no doubts about the bona fides of the marriage but also determine that the conditional resident had been arrested and convicted for a crime involving moral turpitude, you could not deny the Form I-751 joint petition on that basis. Instead, you would have to either initiate rescission proceedings under section 246 of the Act (see Chapter 26 of this field manual) or refer the case to Investigations for initiation of removal proceedings (depending on when the arrest and conviction occurred).

(2) Waiver of Joint Petitioning Requirement . Only under the rarest of circumstances should the interview requirement be waived in the case of an alien seeking a waiver of the filing requirement under section 216(c)(4) of the Act. When interviewing an applicant for a joint waiver, remember that he or she may have suffered an extreme hardship, may be uncomfortable about the dissolution of his or her marriage, may even have been the victim of spousal (or parental) abuse (otherwise he or she should not have filed the waiver application). While you are required to conduct a thorough interview to uncover the facts of the case, you should do so in a professional manner which avoids unnecessary discomfort or embarrassment to th e alien.

In determining whether extreme hardship exists or existed, be aware that the statute only allows factors and circumstances which occurred or arose during the time when the alien was a conditional permanent resident. Factors arising, or events occurring, outside of that time period should not be considered (unless they can be tied to related events which happened during such time period).

Normally, an alien will only seek a waiver on one of the grounds set forth in section 216(c)(4) of the Act. However, on occasion an alien may claim to be eligible for a waiver on more than one ground. If so, the applicant must indicate all applicable waivers on the Form I-751, with the exception of the spousal/parental abuse waiver (which may be sought either on the same application or on a separate application). Your interview must cover all of the grounds for which waiver eligibility is claimed. If you find that the alien is not eligible under each of the grounds claimed, the waiver application mus t be denied.

Note : While the applicant is required to state all grounds on the one application (with the exception of the spousal/parental abuse waiver), the failure to do so at the time of filing may be cured by amending the form at the time of interview, if the interviewing officer determines that a different waiver ground is more applicable. Likewise, if after the application has been denied it is determined that the alien would have had a better claim based on a ground other than the one(s) claimed, the applicant may fi le a motion to reopen the proceedings and amend the application. The Service would then have to decide whether there is sufficient justification for reopening the proceeding and (if so) render a new decision on the merits of the reopened case.

Unlike joint petition proceedings, the statute on IMFA waiver proceedings grants the Attorney General discretionary authority. Accordingly, if significant negative factors are discovered during the waiver interview (such as the alien having a criminal record) which outweigh the positive factors, they can be used to deny the waiver application.

(j) Post-adjudication Actions .

(1) Approval . If the Form I-751 is approved, the alien is notified of the approval (which may be by the CLAIMS system if the approval is done at a service center, in person if the approval is done during the interview at a local office, or by letter if it is done by a local office at a later date). The alien is also either processed for a new Form I-551 or (if the approval is not done at the interview) instructed on how to be processed for a new I-551. Do not forget that an approval of a Form I-751 joint petition or wa iver application also applies to any conditional resident children who are included on the form and are eligible for removal of conditions. (But not to a child who has not acquired at least 21 months of residence; that child would have to file a separate I-751 at a later date under the regulatory waiver provision.)

(2) Denial . There is no appeal from the denial of a Form I-751 filed as either a joint petition or a waiver application. Instead, the alien is placed in removal proceedings where he or she may renew the petition or application before the immigration judge. Do not forget that an approval of a Form I-751 joint petition or waiver application also applies to any conditional resident children who are included on the form and are eligible for removal of conditions.

(k) Naturalization Issues Relating to Conditional Residence .

.(1) Form I-751 Filed by a Naturalized Citizen . If, prior to the second anniversary of his or her date of admission or adjustment as a conditional permanent resident, an alien naturalizes (such as an alien who qualifies under sections 319(b) , 319(c) or 319(d) of the Act), the requirement to apply for removal of conditions no longer exists. Should a naturalized citizen file a Form I-751, either jointly with his or her spouse or individually as a waiver under section 216(c)(4) of the Act, the naturalized citizen should be advised in writing that, as a citizen of the U.S., the removal of conditions provisions do not apply to him or her. If there was Service error involved in the Form I-751 being filed (for example, if the citizen received a computer-generated notice from the Service that he or she had to file such petition), the filing fee should be refunded. The Form I-751 should be counted as a statistical denial.

Note: If the naturalized citizen is the parent of a child who was admitted as a conditional resident based on the parent’s marriage, and that child did not also become a citizen, the child is required to file Form I-751 for removal of conditions under 8 CFR 216.4(a)(2) .

(2) Removal of Conditional Resident Status Prior to, or Concurrently with, Adjudication of Form N-400 . Ideally, any Form I-751 that is submitted by a conditional resident will be adjudicated prior to the conditional resident’s filing of an application for naturalization; however, the disparity in adjudication times of Forms I- 751 and Forms N-400 is such that this may not always be the case. In general, if a USCIS officer is scheduled to examine an applicant for naturalization who was admitted as a conditional resident, the USCIS officer must ensure that the Form I-751 filed by the conditional resident h as been adjudicated and approved and that the conditions on the conditional resident’s status have been removed.

(A) Form N-400 Filed Under INA 319(a) or 319(b) . In almost all cases, a Form N-400 that is filed while a Form I-751 is pending will have been filed under either section 319 (a) or 319(b) of the Immigration and Nationality Act (Act). Each of these sections of law requires a higher level of evidence of marital union and joint residence than is required for the approval of Form I-751 filed jointly. If a Form I- 751 is pending at the time of the conditional resident’s examination on the Form N-400, the USCIS officer adjudicating the Form N-400 shall conduct the N-400 examination. If the applicant demonstrates 319(a) or 319(b) eligibility and the Form I-751 is in the file, the U SCIS officer shall approve the Form I-751 and update MFAS.

If the Form I-751 is not present, the USCIS officer shall proceed with the naturalization examination and request that the Form I-751 be forwarded to him or her. The USCIS officer shall continue the adjudication of the Form N-400 until such time that the Form I-751 is received. Once the Form I-751 is received, the USCIS officer will simultaneously adjudicate the Form I-751 and the Form N-400. The final decision on the Form I-751 should be updated in MFAS.

(B) Form N-400 Filed under Any Other Eligibility . If the Form N-400 is filed under some section of law that does not require marital union, the USCIS officer shall request the Form I-751 and continue the adjudication of the Form N-400 until such time that the Form I-751 is received. Once the Form I-751 is received, the officer must complete simultaneous adjudication of the Form I-751 and the Form N-400.

Under no circumstances should a Form N-400 be continued until a pending Form I-751 is adjudicated at the Service Center having jurisdiction over the said form. Adjudication of a conditional resident’s application for naturalization must not be delayed due to USCIS processing delays of Forms I-751. Also, under no circumstances should a Form N-400 be approved prior to the adjudication of a pending Form I-751. The USCIS officer adjudicating the Form N-400 must request the pending Form I-751 and complete a si multaneous adjudication of the Form N-400 and Form I-751.

(l) Precedent Decisions . The following precedent decisions pertain to the adjudication of joint petitions to remove conditions and applications for waivers of the requirement to file such joint petitions:

• Matter of Lemhammad , 20 I&N Dec. 316 (BIA 1991) - Original jurisdiction to rule on the merits of an Application for Waiver of Requirement to File Joint Petition for Removal of Conditions rests only with the Service, and not the immigration judge.

• Matter of Mendes , 20 I&N Dec. 833 (BIA 1994) - Where the parties to a marriage have jointly filed a Petition to Remove the Conditions on Residence, but one of the parties withdraws support from the petition before its adjudication, the joint petition shall be considered withdrawn and shall be adjudicated under section 216(c)(2)(A) of the Act (i.e., the CPR status terminated). When a respondent in deportation proceedings has not filed an application for a waiver under section 216(c)(4) of the Act and is prima facie eligible for such relief, the proceedings should be continued in order to grant the respondent a reasonable opportunity to file the application before the Service and for the Service to decide the application.

• Matter of Anderson , 20 I&N Dec. 888 (BIA 1994) - A conditional permanent resident alien who seeks to remove the conditional basis of that status by means of a waiver under section 216(c)(4) of the Act should apply for any applicable waiver provided under that section. An alien whose application for a specific waiver under section 216(c)(4) of the Act has been denied by the Service may not seek consideration of an alternative waiver under that section in deportation proceedings before the immigration judge. Where an alien beco mes eligible for an additional waiver under section 216(c)(4) of the Act due to changed circumstances, the proceedings may be continued in order to give the alien a reasonable opportunity to submit an application to the Service. Inasmuch as the Board of Immigration Appeals only has authority to review a waiver application after the Service and the immigration judge have considered it, an alien may not apply for a waiver under section 216(c)(4) of the Act on appeal.

• Matter of Nwokoma , 20 I&N Dec. 899 (BIA 1994) - The Service retains authority to deny a Joint Petition to Remove the Conditional Basis of Alien's Permanent Resident Status pursuant to section 216(c)(3)(A) of the Act, notwithstanding the Service's failure to adjudicate the joint petition within 90 days of the interview of the alien and his or her spouse.

• Matter of Gawaran , 20 I&N Dec. 938 (BIA 1995) - The provisions of former section 241(f)(1) of the Act, do not waive an alien's deportability under former section 241(a)(9)(B) of the Act, because termination of the alien's conditional permanent resident status constitutes a basis for deportability which is separate and distinct from the charge that the alien is "excludable at the time of entry" within the meaning of former section 241(f)(1). In order to preserve an application for relief under section 216(c)(4) of the Act, a n alien must request before the immigration judge a review of the Service's denial of such application.

• Matter of Tee , 20 I&N Dec. 949 (BIA 1995) - An alien becomes statutorily ineligible for approval of a joint petition under section 216(c)(1) of the Act where the marriage has been terminated prior to adjudication of the petition.

Was the Marriage Entered into for Immigration Purposes? Is the marraige "Bona fide" for immigration purposes?

In order to be granted permanent residency, your spouse's relationship with you must be established and your spouse must be admissible to the United States under the immigration law. Also, the marriage must be bona fide, not merely a sham to get the non US citizen spouse a green card. The USCIS takes fraudulent marriage seriously and you will be asked to provide supporting documents to show that the marriage is valid.

Over the past two decades, Congress and the CIS have grown increasingly suspicious of marriages. Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. While this conditional status is for the most part the same as regular permanent residence, it is designed to provide assurance that the parties did not marry for immigration purposes by allowing the conditional status to be revoked if the marriage does not last two years.

It is important to note at the outset that it is not against federal immigration law to consider immigration in deciding to get married. Considering immigration benefits will only be a problem if those were the ONLY reason to marry. So a couple, one of whom is undocumented and the other a citizen would not be breaking the law if they married before they would otherwise have planned to so the noncitizen can legalize his or her status. Despite this, and despite the fact that it can be impossible to determine why people marry, the CIS makes this determination every day. Therefore, it is important to know what factors will make the agency suspect marriage fraud.

Some of the most obvious of these are if the couple did not know each other for very long before marrying or had seen each other only a few times before marrying. Also, if the couple does not live together, the CIS will be very suspicious, even more so if they have never lived together. Also, marriages between couples from different backgrounds, especially those that lack a common language, are viewed with suspicion.

The CIS is very suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the CIS. In such cases, the beneficiary is required to stay outside the US for two years after the marriage unless the parties can prove the marriage is bona fide. The best way to show that the marriage is bona fide is to present evidence of the parties’ joint ownership of property and their cohabitation. Evidence of children born in the marriage, as well as affidavits from friends and family testifying to the bona fides of the marriage are also helpful.

The CIS has discretion to suspect and then accordingly to investigate a marriage which may bring immigration benefits to the aliens. If the CIS has reasons to suspect that the marriage is a "sham marriage", the CIS officers have the authority to investigate. Usually, the CIS officers may visit the suspect couple at their residence, or visit their neighbors to investigate whether they reside together, share a household, or own property jointly, etc. Also, the CIS officers may arrange interviews with the couple at their residence or at local CIS offices. _________________________________

Whether an alien qualifies as a spouse depends upon three factors:

(1) the validity of the marriage under the law of the jurisdiction where it was performed;

(2) whether the marriage was entered into in order to confer an immigration benefit on the alien (a sham marriage); and

(3) the current status of the marriage.

The only legally-sanctioned marriage defined by the INA to be invalid for immigration purposes is one in which the two parties were not physically in the presence of each other at the time of the marriage ceremony, unless the marriage was subsequently consummated. Other marriages may be invalid at their inception because one of the parties lacked legal capacity or because the marriage is against the law of the jurisdiction.

The most common impediment to a valid marriage, however, is the objection that one of the parties lacked capacity to marry because of the invalidity of a prior divorce. Any prior divorce must meet the legal standards of the jurisdiction where the divorce decree is entered, and must be recognized in the jurisdiction where the subsequent marriage occurs. While all U.S. divorces are considered valid determining the validity of divorces in foreign jurisdictions is often a complicated task. This difficulty can be compounded when the foreign jurisdiction recognizes "custom-ary" divorces and marriages; in such instances, it is necessary to study the actual facts of the divorce or marriage proce-dure or ceremony to determine whether the proper ritual was followed.

Even if a marriage is valid at its inception, it may be considered sham for immigration purposes if it was entered into to confer an immigration benefit on the alien. The general authority to investigate the bona fides of a marriage rela-tionship for purposes of conferring an immigration benefit appears in section 204(b) of the INA. The basic test in all cases will be whether the parties entered into the marriage sharing the intention to establish a life together. Thus, the fact that the couple is presently divorced or separated does not necessarily negate the validity of the marriage for immi-gration purposes, although such circumstances may raise questions as to the bona fides of the marriage. In addition to this general investigatory authority, section 204(c) of the INA bars the approval of a visa petition for a person who pre-viously obtained, or attempted or conspired to obtain, immigration benefits by reason of a marriage determined to have been entered into for purpose of evading the immigration laws.

Several other provisions added by the Immigration Marriage Fraud Amendments of 1986 (IMFA) are also designed to combat sham marriages.

First, the INS cannot approve the spousal second preference petition of permanent residents who have been accorded their status based on a prior marriage unless:

(1) a period of five years has elapsed after the alien acquired the permanent resident status;

(2) the alien establishes through clear and convincing evidence that the prior marriage was not entered into for purposes of evading the immigration laws; or

(3) the prior marriage was terminated through the death of the petitioner's spouse.

Second, an immigrant visa petition cannot be approved for an alien who has married after commencement of deportation, exclusion, or removal proceedings until the alien has resided outside of the United States for two years after the marriage. The alien can obtain a "bona fide marriage" waiver of the foreign residence requirement if the alien establishes by clear and convincing evidence that:

(1) the marriage was entered in good faith and in accordance with the laws of the place where the marriage took place;

(2) the marriage was not entered into for the purpose of procuring the alien's entry as an immigrant; and

(3) no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparing petitions) for the filing of a petition on behalf of the alien.

Finally, under IMFA, aliens who obtain an immigration benefit on the basis of a marriage entered into within two years of the time the benefit is conferred will be granted conditional resident status for a period of two years. Before this period ends, the couple must file a joint petition to remove the conditional basis of the alien's residence; failure to do so results in automatic termination of the alien's resident status. When the conditional resident is unable or unwilling to obtain the cooperation of the citizen or resident spouse or parent, he or she will be required to file an application for waiver of the joint petition requirement. There generally is no requirement that a marriage currently be viable in order for it to be the basis for conferring immigration benefits. In most cases, as long as the couple entered into a bona fide marriage and have neither divorced nor legally separated pursuant to a formal written instrument, they will be considered spouses for immigration purposes.

(1) In the absence of adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Interim Decision 2750 (BIA 1980), clarified and reaffirmed. Matter of Cavazos, 1980 BIA LEXIS 2; 17 I. & N. Dec. 215

(2) A fraudulent or sham marriage that is entered into for the primary purpose of circumventing the immigration laws does not enable an alien spouse to obtain immigration benefits.

(3) Where the parties enter into a valid marriage, and there is nothing to show that they have since obtained a legal separation or dissolution of that marriage, a visa petition filed on behalf of the alien spouse should not be denied solely because the parties are not residing together.

(4) Although the separation of spouses in and of itself is not a valid basis for denial of a visa petition based upon a determination that the marriage is not viable, a separation is a relevant factor in determining the parties' intent at the time of their marriage, i.e., whether the marriage is a sham. (Matter of McKee, 1980 BIA LEXIS 17; 17 I. & N. Dec. 332)

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The following is a list of some of the typical questions asked during an adjustment of status interview. During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

MARRIAGE INTERVIEW-SAMPLE QUESTIONS

During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

Name and address.

Name and Date of Birth of Spouse.

When and where did you meet your spouse?

Describe this 1st meeting.

Did you make arrangements to meet again?

Did you exchange phone numbers?

When did you meet next?

Where were you living at the time? Where was your spouse living?

When did you decide to get married? Where were you at the time?

Did you live together before marriage?

When and where did you get married? How did you and your spouse get to the church, courthouse, etc.?

Who were the witnesses to the ceremony?

Did you exchange wedding rings?

Where had you purchased these rings? Did you and your spouse purchase them together?

Did you have a reception after the ceremony?

Where was it held?

Do you have any photos of the ceremony and /or reception?

Describe the reception.

Did any of your, and your spouse's, family members attend? If so, who?

Did you go on a honeymoon? If so, when and where?

If you did not have a reception, what did you do after the wedding ceremony?

Where did you live after the wedding?

Describe the place where you lived right after the marriage. Number of bedrooms and bathrooms; furnishings; color of walls, floor coverings, appliances, etc; type of air conditioning, heating, etc; # of telephones, televisions, etc. Do you have cable television?

Where did you get the furniture? Was it already there, did you buy it, was it a gift, or did it come from your, or your spouse's, previous residence?

If brought to the house or apartment, describe how it was transported.

Describe your bedroom. Where do you keep your clothes? Where does your spouse keep his or her clothes? Where are the bathroom towels kept? Where do you keep the dirty clothes?

Where is the garbage kept in the kitchen?

On what day of the week is the garbage picked up?

Where do you shop for groceries? Do you go together with your spouse? How do you get there?

Where do you work? What days of the week do you work?

What hours do you work? What is your salary?

What is your telephone # at work?

When was the last vacation you had from work?

Did you and your spouse go anywhere together at that time?

When was the last vacation you and your spouse took together?

Where did you go? How did you get there? Describe it.

Where does your spouse work? What days of the week? What hours? What is the salary, if you know?

What is your spouse's telephone # at work?

When was the last time your spouse got a vacation from work?

Do you know your spouse's family members? If so, which ones? If your spouse has children from a previous marriage, their names, ages, where they live, and where they go to school, if applicable.

Where do you live now? (If different from where you lived right after the marriage, then go over the same questions as above). How much is the rent? When is it paid? How do you pay it?

Do you have a bank account together? Where? What kind of account? (Checking, savings).

Are both of you listed on the account? (Do you have a bank letter, cancelled checks, etc.?)

Did you file a joint tax return this year? Do you have a copy with you?

Do you own any property together? What property? Did you bring copies of the documents with you?

What kind of automobile do you and your spouse have? Describe them.

Do you have an Insurance policy listing your spouse as the beneficiary? If so, do you have a copy?

Have you taken any trips or vacations together? Do you have photos from these trips?

Do you have any utility bills, or receipts from items you have purchased together?

What other documentation do you have to show that you are living together as husband and wife?

Do you have any pets? What kind, what are their names, and describe them?

What did you do for Christmas, New Year's, your anniversary, or you or your spouse's last birthday? Did you exchange gifts? If so, what kind of gift?

Did you or your spouse go to work yesterday? If so, at what time did you and/or your spouse leave the house and return?

Who cooks the meals at the house?

What is your spouse's favorite food? What is your favorite food?

Does your spouse drink coffee? If so, does he or she use cream and/or sugar?

Did you eat dinner together last night? Did anyone else have dinner with you? What did you have?

What time was dinner served? Who cooked it?

Did you watch TV after dinner? What shows did you watch?

At what time did you go to bed? Who went to bed first?

Did you have the air conditioning or heater on?

Who woke up first this morning? Did an alarm clock go off?

Did you or your spouse take a shower?

Did you come to the interview together? Who drove?

Did you have breakfast? Where and what did you eat?

Please remember that the number and types of questions that can be asked is almost limitless. Therefore, you and your spouse should review your entire lives together prior to attending the immigration interview. Even married couples living together for many years sometimes have difficulties remembering all of the facts of their relationship. Be prepared and take original documents with you. Then you will have no problem passing the interview and obtaining permanent residence in the United States.

Criminal Penalties for Marriage Fraud -- 8 U.S.C. § 1325(c) and 18 U.S.C. § 1546

Marriage fraud has been prosecuted, inter alia, under 8 U.S.C. § 1325 and 18 U.S.C. § 1546(a). The Immigration Marriage Fraud Amendments Act of 1986 amended § 1325 by adding § 1325(c), which provides a penalty of five years imprisonment and a $250,000 fine for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." Under 8 U.S.C. § 1151(b), "immediate relatives" of U.S. citizens, including spouses, who are otherwise qualified for admission as immigrants, must be admitted as such, without regard to other, ordinary numerical limitations.

The typical fact pattern in marriage fraud cases is that a U.S. citizen and an alien get married. They fulfill all state law requirements such as medical tests, licensing, and a ceremony. But the U.S. citizen is paid to marry the alien in order to entitle the alien to obtain status as a permanent resident of the United States; the parties do not intend to live together as man and wife. A legal issue arises where the parties tell the INS they are married, and they subjectively believe they are telling the truth because they have complied with state marriage requirements. The Supreme Court has ruled that the validity of their marriage under state law is immaterial to the issue of whether they defrauded INS. See Lutwak v. United States, 344 U.S. 604 (1953). Lutwak was followed in United States v. Yum, 776 F.2d 490 (4th Cir. 1985); Johl v. United States, 370 F.2d 174 (9th Cir.1966), and Chin Bick Wah v. United States, 245 F.2d 274 (9th Cir.), cert. denied, 355 U.S. 870 (1957). But see, United States v. Lozano, 511 F.2d 1 (7th Cir.), cert. denied, 423 U.S. 850 (1975); United States v. Diogo, 320 F.2d 898 (2d Cir. 1963). But cf, United States v. Sarantos, 455 F.2d 877 (2d Cir. 1972).

There have been situations where a bona fide marriage turns sour but the alien induces the U.S. citizen spouse to maintain the marriage as a ruse only as long as necessary for the alien to obtain status as a permanent resident alien. There is a line of cases holding that the viability of the marriage, if initially valid, is not a proper concern of the INS. United States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian v. Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein. However, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. § 1186a, were designed, inter alia, to eliminate the Qaisi type loophole by establishing a two-year conditional status for alien spouses seeking permanent resident status, and requiring that an actual family unit still remain in existence at the end of the two year period.