Do I File My I-751 . . .
When The Marriage Has Broken Down, But is Not Yet Terminated?
A Conditional Permanent Resident (CPR) is one who has obtained his or her status through marriage to a United States Citizen spouse or to a Legal Permanent Resident (LPR) spouse within two years of the marriage.
Section 216 of the Immigration and Nationality Act (INA) imposes a two year period of conditional residency, and the CPR must file Form I-751 to remove his or her condition on residence. Generally, the CPR and the USC spouse jointly file an I-751 petition to remove the condition on permanent residence within a 90 day period prior to the second anniversary of the issuance of conditional residence.2 However, pursuant to INA §216(c)(4) and 8 C.F.R. § 216.5, if the CPR is unable to file jointly, he or she may request a waiver of the joint filing requirement if the CPR establishes that:
- Removal from the United States
would result in extreme hardship;
- The CPR entered the
marriage in good faith, but the marriage was
terminated (other than through death); or
- The CPR entered the
marriage in good faith, but the petitioning spouse
or parent battered the CPR spouse or child.
Therefore, only CPRs who are in a position to quickly submit proof of termination of their marriage after filing the I-751 petition, should take advantage of the new policy.
Otherwise, CPRs can still try to file the I-751 waiver based on the other two grounds, namely, that the petitioning spouse battered the CPR spouse or that the CPR’s removal from the US would result in extreme hardship. If there are adequately strong grounds to file a waiver under these circumstances, it may be preferable to do so unless the marriage is reasonably expected to result in a termination shortly after the filing of the I-751 petition. If the marriage does subsequently terminate, the CPR can then file a new I-751 on this basis and perhaps withdraw the prior I-751 waiver.
The Neufeld Memo affirms based on established case law, that a joint I-751 should not be denied solely because the spouses are separated or have initiated divorce or annulment proceedings. Therefore, if the spouses are still cooperating, but have separated or have initiated divorce proceedings, there is nothing to prevent the CPR from still filing a joint I-751 petition with the USC spouse. However, the Neufeld Memo cautions that “legal separation nor initiation of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of procuring permanent resident status.”
The Neufeld Memo also allows a CPR who has filed a joint I-751 petition under such circumstances to provide evidence of the termination of the marriage even though the I-751 petition was filed jointly.
Therefore, the new policy allows such an applicant to change course mid-stream, even after filing a joint I-751, by converting that joint I-751 into a waiver. However, if the I-751 was filed jointly, even while the marriage had broken down, there should be no compulsion to submit a divorce, if requested, if it has not come through within the response time of the RFE. The parties may still assert that even though the marriage has broken down, it was still entered into for bona fide purposes. Indeed, the Neufeld Memo instructs the ISO to make the following determination:
- The marriage was legal where it took place;
- The marriage has not been terminated;
- The marriage was not entered into for the purpose
of procuring permanent resident status; and
- No fee (other than to an attorney for filing assistance)
was paid for the filing of the underlying 1-130 or I-129F.
If the above criteria have been met, and even if the marriage has broken down, a jointly filed I-751 can still be approved without the need for the CPR to submit evidence of termination of the marriage. Be careful, however, if a Petion for Dissolution of Marriage has been filed with the court . . . this is where it gets tricky!
See our web site at www.inteconlaw.com and call us for a free telephone consultation at (949) 833-8021. Law Offices of David D. Murray handles immigration cases across the USA and around the world.