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Start →U.S. Department of Justice Immigration and Naturalization Service HQADN 70/23.12 425 I Street NW Washington, DC 20536 April 10, 2003 MEMORANDUM FOR REGIONAL DIRECTORS SERVICE CENTER DIRECTORS DISTRICT DIRECTORS FROM: William R. Yates /s/ Janis Sposato Acting Associate Director, Operations Bureau of Citizenship and Immigration Services SUBJECT: Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage Background The Immigration Marriage Fraud Amendments of 1986 a) (IMFA), b) Pub. L. 99-639 (November 10, 1986), 1) were enacted to combat fraud a) perpetrated by aliens i) who marry A) only to obtain immigration benefits. The IMFA amended the Immigration and Nationality Act (Act) a) by adding a new section 216, i) which imposes an initial 2-year period A) of conditional residency B) on a person I) who acquired permanent resident status (a) based on a recent marriage. Section 216 also provides a comprehensive procedure a) by which a conditional resident may have these conditions removed i) following approval A) of a petition I) filed jointly with (a) the citizen or (b) lawful permanent resident spouse, or ii) after approval A) of a waiver I) of the joint petitioning requirement iii) (both filed A) on Form I-751, I) Petition to Remove Conditions on Residence). Section 216 further mandates termination a) of the conditional resident’s status 1) if he or she fails to comply with the requirements a) for removal of the conditions b) at the end i) of the 2-year period. Finally, section 216 allows an alien a) whose status has been terminated b) to ask the immigration judge i) to review this decision A) during deportation proceedings. In recent months, several questions have been raised a) regarding whether a conditional resident can file a waiver i) of the joint petitioning requirement ii) on Form I-751 iii) after commencement of A) divorce or B) annulment I) proceedings iv) but prior to final termination A) of the marriage. This memorandum clarifies the Immigration and Naturalization Service’s (Service) position a) on this issue. Memorandum for Regional Directors, et al. Page 2 Subject: Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage Filing a Form I-751 prior to final termination of the marriage According to section 216(c)(4)(B) a) of the Act, 1) a waiver a) of the joint filing requirement may be granted 2) if the alien spouse can establish that a) “the qualifying marriage was entered into i) in good faith ii) by the alien spouse, b) but i) the qualifying marriage has been terminated A) (other than through the death of the spouse) and ii) the alien was not at fault A) in failing to meet the requirements I) of paragraph (1)”. The statute clearly requires that a) the marriage i) already ii) be terminated and, b) thus, the mere commencement i) of divorce proceedings is not sufficient. Further, in Matter of Anderson, a) 20 I&N Dec. 888 (BIA 1994), 1) it was determined that a) an alien spouse: [W]as ineligible i) to apply for a waiver A) under section 216(c)(4)(B) [of the Act] 1) because she remained married i) to her husband . . . if the respondent had become i) statutorily ii) eligible A) to apply for the section 216(c)(4)(B) waiver B) by virtue of changed circumstances, I) i.e., through the termination of her marriage . . . 1) she could have sought a continuance i) from the immigration judge ii) to pursue her alternative application A) with the Service. In addition, the instructions a) to the Form I-751 1) clearly state that: [Y]ou may apply for a waiver i) of th[e] joint filing requirement ii) on this form 1) if . . . i) you entered into the marriage A) in good faith, ii) but the marriage was later terminated A) due to divorce or annulment . . . If you are filing i) to waive the joint filing requirement ii) because your marriage has been terminated, 1) also submit a copy of i) the divorce decree or ii) other document A) terminating or B) annulling I) the marriage with your petition. As such, an alien a) whose conditional resident status is approaching the 2-year anniversary i) of the grant of such status, b) but who is unable to file a joint petition i) to remove the conditions ii) because A) divorce or B) annulment I) proceedings have commenced, 1) may not apply for a waiver a) of the joint filing requirement b) based on the “good faith” exception. If a) an alien’s conditional resident status is terminated i) because he or she could not A) timely B) file a Form I-751, and b) he or she is placed i) in removal proceedings, 1) then a) he or she may request a continuance i) from the immigration judge ii) to allow for the finalization A) of I) the divorce or II) annulment proceedings. It is noted that a) the conditional resident i) whose status has been terminated should be issued a temporary I-551 i) during the pendency A) of his or her case I) before the immigration judge (see Genco Opinion 96-12). ← End
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