Separated but not Divorced. Navigating the Jointly filed I-751 Petition to Remove Conditions on Residence - PART III
On November 30, 2018, USCIS issued a Policy Memorandum entitled "Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence." Although it applies to all I-751 petitions (not just joint petitions filed by spouses who are separated but not divorced), because it answers some of the common questions that my clients ask me regarding whether they will be interviewed on the I-751 Petition, I thought it provided a good opportunity to create this Part III to the series of "Separated But Not Divorced. Navigating the Jointly Filed I-171 Petition to Remove Conditions on Residence."
According to the Policy Memorandum (the Memo), USCIS officers are generally required to personally interview a conditional permanent resident who has obtained lawful permanent resident status on a conditional basis and who is the principal petitioner on a Form I-751, unless the interview is WAIVED. The Memo then goes on to describe and address the situations when officers may consider interview waivers. It is important to note that the guidance offered by the Memo only applies to I-751 forms that were received by USCIS on or after December 10, 2018.
USCIS officers may consider waiving an interview if they are satisfied that:
- They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
- USCIS has previously interviewed the I-751 principal petitioner (for example, for a Form I-485 or Form I-130);
- There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; AND
- There are no complex facts or issues that require an interview to resolve questions or concerns.
NOTE initially that all 4 conditions must be present for an officer to consider waiving an interview on the I-751 petition. Note also that when determining whether to waive an interview, the considerations listed above apply regardless of whether the Form I-751 is filed as a joint petition or as a waiver of the joint filing requirement.
The Memo also addresses the following additional "Special Cases":
Overseas Holds. If the petitioner and/or spouse live outside the United States, the case is held for a reasonable amount of time until the return of the petitioner and/or spouse to the U.S., and they are able to provide a U.S. address. USCIS will resume processing of the Form I-751 if the conditional permanent resident notifies USCIS that he/she has returned to the U.S.
Petitioner and/or Spouse Live Outside the United States Pursuant to Military or Federal Government Orders. Form I-751s filed by conditional permanent residents who are currently overseas under military or Federal Government orders and who have valid APO/FPO addresses are not automatically placed on an “overseas hold,” because a Permanent Resident Card (also referred to as “Green Card” or an I-551 card) can be issued and sent to an APO/FPO address if these I-751s are approved. Instead, the officer will review the Form I-751 and supporting documentation filed by the conditional permanent resident and his or her spouse to determine whether to waive the interview requirement in accordance with the guidance outlined in section (g)(1).
Improperly Classified. These are cases where the conditional permanent resident was incorrectly classified when he or she became a permanent resident (generally because the inspecting or adjudicating officer failed to notice that the alien had been married for at least two years at the time he or she was admitted to the U.S. as a permanent resident or adjusted his or her status to that of a permanent resident). When an officer determines that the alien was improperly classified as a conditional permanent resident, the officer should follow appropriate procedures to notify the conditional permanent resident of the misclassification.
What conclusions we make from this policy guidance and how can this help me?
- Whenever possible, I-751 petitioners would be well advised to thoroughly document their marriage and provide enough evidence along with the I-751 which would allow the adjudicating officer to easily conclude that both the marriage was entered into in good faith AND that the parties are still married. In reality, this advice really applies to all filings with USCIS, as officers now have the discretion to simply deny a petition/application without even issuing a Request for Evidence (or issuing a Notice of Intent to Deny) simply based upon the failure to include evidence that establishes eligibility for the immigration benefit that is being applied for.
- Note also that when you thoroughly document your marriage and provide all of the required evidence that this will also address the 3rd consideration above. This is because, when you provide detailed documentary evidence of your marriage, from the beginning up through and including the present, it tends to negate any "indication of fraud or misrepresentation" in connection with the filing because the evidence establishes that the marriage was entered into in good faith and not solely to obtain a green card for the foreign national beneficiary.
- Note also that as for the 2nd consideration, by the time petitioners are filing Form I-751, in almost every case that I have ever worked on, "USCIS has previously interviewed the I-751 principal petitioner". Thus, it may be helpful to remind USCIS - in a cover letter, for example - that "The parties were interviewed on the I-130/I-485 on ____ [DATE]". I have over 20 years experience in preparing and submitting I-751 petitions, as well as the underlying petitions/applications that precede the I-751 (such as the I-130 and I-485) and know what USCIS is looking for when adjudicating I-751's. For more information, please contact me to set up a consultation regarding the fact and circumstances of your case.
How does this policy guidance affect me if I am separated but not divorced?
IF you are separated but not divorced, your case may fall under consideration number 4 because the officer may decide that there are "complex facts or issues that require an interview to resolve questions or concerns." While there is no way of knowing whether this policy guidance will automatically require all such petitioners to be interviewed in the future, in my practice, I will continue to address this consideration by simplifying the case for the officer, being open and transparent about the fact of the current separation, and attempting to anticipate and address concerns that the officer may have with the I-751 petition. As set forth in my previous posts
on this topic, where the parties are separated but not divorced, the law requires USCIS to look at the bona fides of the marriage and assess whether it was entered into in good faith; the fact of the separation, by itself, cannot form a legal basis to deny a joint petition EVEN IF the parties are separated at the time of filing.
- In my experience, I-751 petitioners who are separated seem to be very hesitant to disclose and document the fact of the separation. This probably results from a mistaken belief that the separation means that the I-751 will be denied. First of all, lying on an application for U.S. immigration benefits is a federal crime and can create serious problems for the applicant. Secondly, the law still provides a path forward for married but separated couples who file a joint I-751 and can prove that the marriage was entered into in good faith. Thus, in my opinion it is best to fully disclose and address the fact of the separation and explain up front that the parties have entered a rough patch in their marriage. Avoid vague and ambiguous explanations and don't try to create an appearance that you are still living together. This can be construed as fraud, in addition to the fact that it will only increase the chances that the officer will decide that your case has "complex facts or issues" which require an interview, at which you may be asked some very detailed questions under oath.
- In order to directly address the issue of the separation, I always provide the adjudicating officer with evidence (usually in the form of sworn statements from both parties) that confirms the fact of the separation and the current status of the marriage ... reminding the officer that the marriage is still very much intact, at least from a legal standpoint. I have seen many situations, both in and out of the immigration context, where married couples experience challenges in their relationship, separate, and then reconcile and get back together, including "separated but not divorced" I-751 clients whose cases were approved and then later contacted me to tell me that they were back together again!! I have also personally seen cases where couples got divorced, and then later remarried. These things happen, and thus, it would be wrong to conclude that a marriage is doomed simply because the parties have separated. Thankfully, this reality has found its way into USCIS policy and the law governing how joint I-751's are adjudicated where the parties are separated but still married.
I-751 Petitions can present many different legal issues that may require that you consult with an experienced immigration lawyer, especially where separation is an issue. If you need legal assistance with the filing of your I-751 Petition to Remove Conditions on Residence or have any have questions about the timing of filing your joint I-751 petition, contact South Florida Immigration Lawyer Sean D. Hummel and schedule a consultation: (954) 385-3111.