- Deportation & Removal
- Lawful Permanent Residence
- Removal of Condition (I-751)
- Consular Processing
REMOVAL OF CONDITIONAL STATUS (Form I-751)
USCIS vigorously combats marriage fraud as a matter of policy. The Immigration Marriage Fraud Amendment of 1986 (IMFA) (§ 216(c) of the INA), created the requirement that a noncitizen who was granted resident status on the basis of a marriage that was in existence for less than two years when the status was granted must file a Petition to Remove Conditions on Residence within the 90-day period preceding the second anniversary of the grant of the Conditional Residence status. Failure to properly file the I-751 petition or failure to appear at the removal of condition interview, without good cause shown, result in termination of permanent resident status.
Joint Filing of Removal of Conditional Status (Form I-751)
A joint petition for removal of condition is deemed properly filed only if it is signed by both the petitioner and the beneficiary, with the appropriate filings fees, and supported by documentation of evidence that the marriage was not entered into for the purpose of evading the immigration laws of the United States. However, if the joint petition cannot be filed due to the termination of the marriage through annulment, divorce, or death of the petitioning spouse, or if the petitioning spouse refuses to join in filing the joint petition, the conditional resident may apply for a waiver of the requirement for joint filing.
Documentation to Support Removal of Conditional Status (Form I-751).
- Documentation showing joint ownership of property such as real estate, vehicles, boats, businesses, or other financial assets;
- Lease showing joint tenancy of a common residency;
- Documents showing commingling of assets such bank accounts, car, health, and life insurance, etc;
- Birth certificates of children born to the marriage;
- Affidavit of third parties having knowledge of the bona fide of the marital relationship;
- Other evidence such as photos of spouses together (wedding, vacation, trips)
- Copies of joint tax returns, joint bank and credit card account statement;
- Photo ID cards of both spouses showing the same address or the wife showing new married name).
Waiver of Joint Filing of Removal of Conditional Status (Form I-751) under § 216(c)(4).
If the immigrant conditional residence spouse is unable to file Form I-751 removal of condition jointly, there are three separate waiver bases the conditional resident can remove the condition on his or her lawful resident status. The conditional resident spouse can apply for a waiver on one or more of these basis:
- Deportation or removal from the United States would result in extreme hardship.
Simply, under the extreme hardship basis, the conditional resident spouse must make a showing of extreme hardship if removed from the U.S. "Extreme hardship" may be shown to occur to the conditional resident, or a dependent child, or even a spouse the conditional resident marries after the fact. The standard for proving "extreme hardship" is very difficult, as extreme hardship is more severe than the ordinary hardship that is ordinarily associated with deportation, such as family separation, loss of career or economic opportunity, or lifestyle. Although the regulation does not define what constitutes "extreme hardship", the BIA in Matter of Anderson enumerated some of the factors that should be taken into account in deciding whether the applicant meets the standard of extreme hardship. Those factors include age, family ties to the United States and abroad, length of residence in the United States, medical conditions, economic and political conditions in home country, occupation and job skills, immigration history, position in the community, service or assistance to United States or the community such as volunteer or military service. Although many courts have held that the marriage did not have to be entered into in good faith to qualify for "extreme hardship" Waggoner v. Gonzales, etc, USCIS in practice considers whether the underlying marriage was fraudulent.
b. The marriage upon which the individual’s status was based was entered into in good faith by the conditional resident, but the marriage was terminated under §216(c)(4)(b).
This basis of this joint filing waiver is the easiest to prove and is by far the most commonly used as a basis of requesting a waiver of the joint-filing requirement. To qualify under this waiver basis, the conditional resident must show that "the qualifying marriage was entered into in good faith, but the marriage has been terminated and the alien is not at fault in failing to meet the requirement of joint filing. Death of the citizen spouse of the conditional resident is not a basis of waiver for joint filing requirement.
The main consideration in establishing a good faith marriage is whether good faith existed at the time the marriage took place. This means that events that occurred after the marriage that may even have caused the marriage to fail cannot alter facts that indicate marriage was entered into in good faith. The regulation specifically dealing removal of condition 8 CFR §216.5 specifically requires submission of documentary evidence that show the decree to which financial assets and liabilities were combines, documentation concerning the length the parties cohabitated after the marriage and after the alien obtained permanent residence, birth certificates of children born to the marriage, and any other evidence to support the fact that the marriage was entered into in good faith.
- The marriage was entered into in good faith by the conditional resident, but during the marriage the conditional resident spouse or child was battered by, subjected to, extreme cruelty committed by the citizen or permanent resident spouse or parent.
Conditional resident filing for a waiver of joint filing of removal of condition Form I-751 under on extreme cruelty basis must show that the qualifying marriage was entered into in good faith by the alien spouse. Furthermore, the foreign conditional resident spouse must also show that during the marriage, the spouse or child was subjected to extreme cruelty by the petitioning spouse or parent, and the conditional resident spouse not be at fault in failing to meet the joint filing requirement. The conditional resident spouse can apply for this waiver regardless of their marital status. This means the conditional resident spouse could still be married, divorced or remarried to a subsequent spouse and still be eligible for this waiver. To prove extreme cruelty, the USCIS considers any credible evidence. Although the regulation provides a list of the types of evidence that may be provided to prove physical abuse such as reports from the police, medical personnel, judges, school officials, social service agencies, USCIS in practice considers all credible evidence. Many people do not know that extreme cruelty also include extreme mental and emotional cruelty and that USCIS will consider evidence such as mental health records, psychological reports and evaluation and or any other evidence. Some attorneys have even submitted results of polygraph testing to prove that their clients were subjected to extreme physical, emotional or mental cruelty.
Asylum Based Lawful Permanent Resident Under § 209
Immigrants granted political asylum or refugee status under Section 207 is eligible to apply for lawful permanent residency in the United States. To qualify for asylum-based adjustment, the immigrant granted asylum (asylee) must continue to maintain his or her asylum status (meaning has not been terminated), must have been physically present in the United States for at least one year, and has not otherwise acquired permanent resident status. Therefore, to obtain asylum-based lawful permanent residency, the alien must have had asylum status for at least one year, has not firmly resettled in any other country, and be admissible. This means that the alien must show that he or she entered the U.S. legally and not without inspection.
How to Apply for Asylum-based Adjustment
An alien who is applying for asylum-based adjustment is required to file Application for Adjustment of Status (Form I-485), Biographic Information (G-325). An Affidavit of Support is not required for asylum adjustment, but the alien is advised to provide all supporting documentation.
Asylum-based lawful permanent resident status is subject to annual quota, therefore, there usually a backlog applicants waiting for asylum-based permanent residency applications. If you have additional information or need further assistance, please contact us at firstname.lastname@example.org.
Adjustment of Status for Religious Workers Under §204.5(m) of the Act
To qualify as an EB-4 special immigrant religious worker, the immigrant must be a member of a religious denomination that has non-profit religious organization that has a non-profit religious organization in the U.S. The immigrant must have been a member of the religious denomination for at least two years before applying for admission to the U.S. The immigrant must have been carrying on the vocation, professional work, or other work in the capacity detailed below, either abroad, or if in the U.S. in lawful immigration status, and after the age of 14 years continually for at least the two-year period immediately preceding the filing of the petition. The immigrant must show that his or her past work in the position was full time and compensated. Work in volunteer capacity is not considered.
Commonly, religious workers enter the U.S. on R-I nonimmigrant visa and apply for Form I-360. Petition for Amerasian, Widow(er) or Special Immigrant. Petition for classification as a Special Worker is filed with the Service Center that has jurisdiction over the location of the location of the religious denomination. Unlike other dual intend visas, an applicant for adjustment for religious workers must:
Seek to enter the U.S. solely :
- As a minister, or priest of the religious denomination; or
- In a “professional capacity” in a religious organization or its nonprofit affiliate;
- In a religious occupation either in a professional or nonprofessional capacity.
A bona fide religious organization, and any affiliates that will employ the immigrant, is a bona fide non-profit religious organization in the U.S. and is exempt from taxation under Section 501(c) of the IRS code.
Religious Denomination means a religious group or community of believers that is governed under a common religious organization and has a common creed of faith or statement of faith shared among the members, common form of worship, common code of doctrine and discipline, common religious services and ceremonies, common established places of worship or religious congregations, etc.
Denominational membership means membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the United States religious organization where the immigrant will work.
A Minister is defined as an individual who:
- Is fully authorized to perform duties usually performed by authorized clergy of that denomination;
- Performs activities relating to the religious calling of the minister
- Works solely as a minister in the U.S., which may include administrative duties.
If you need additional information regarding whether you qualify for adjustment of status as a religious worker, please contact us at email@example.com or an experienced immigration attorney in your city.
Lawful Permanent Residency Through Labor Certification:
The immigration law and regulations allows an alien who possesses skill in an area of “labor shortage” to obtain permanent residency in the United States. The process of proving that labor shortage and the alien’s qualification to perform the job is called labor certification. Examples of jobs that generally fall into this category are pharmacists, nurses, cooks, mechanics, and foreign-language technical writers. Most jobs are not appropriate for labor certification. However, if you perform a job that has unique features or requirements, it may be suitable for labor certification. We may be able to help you get a Green Card if you possess a labor skill that is in short supply in the U.S. Contact us for more detailed information.