By Emmanuel S. Tipon
In the good old days, aliens would marry U.S. citizens who would file a petition for alien relative and if approved the alien would get a permanent green card. Remember the 1941 film “Hold Back the Dawn” starring Olivia de Havilland and Charles Boyer? Charles, a Romanian gigolo in Mexico wanted to come to the U.S. He married Olivia, a school teacher visiting Mexico, in order to obtain admission to the U.S. She petitioned for him.
An immigration officer suspected that Charles married Olivia to obtain a green card. Olivia likewise believed that Charles married her for the green card. The officer stalked Charles and questioned Olivia but she did not squeal on him. When Olivia suffered serious injuries in a car accident, Charles illegally entered the U.S. to care for Olivia. In the end the officer gave Charles his green card which was permanent. However, many aliens were “con artists” preying on Americans to help them get green cards by marrying them and then subsequently divorcing them. To stop this fraud, Congress approved the Immigration Marriage Fraud Amendments (IMBRA) which became law on November 10, 1986. INA Section 216A [8 USC 1186b]. The law provides that an alien entrepreneur, an alien spouse, or alien child shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of the law. For example, if an alien residing abroad marries a U.S. citizen who files a petition for alien relative and it is approved, the alien who is admitted to the U.S. as an immigrant within 2 years of the marriage is a conditional resident.
If a U.S. citizen files a petition for an alien fiance/fiancee living abroad and the petition is approved and the fiance/fiancee is admitted to the U.S., the fiance/fiancee must file an application for adjustment of status. If it is approved, the alien is a conditional resident for 2 years from the time the green card is issued.If a U.S. citizen marries an overstaying alien in the U.S., and the USC files a petition for the alien and the alien files an application for adjustment of status which is approved, the alien is a conditional resident for 2 years from the time the green card is issued. CONDITIONAL RESIDENT MUST FILE PETITION TO REMOVE CONDITIONSIn order for the conditional basis of the residence to be removed, the alien must file a petition requesting the removal of the condition. The petition must be filed during the 90-day period before the second anniversary of the alien’s lawful admission for permanent residence. The alien must use USCIS Form I-751. Check with the USCIS.gov webpage for the latest form. Read the instructions for Form I-751 on how to fill up and file the form. All relevant questions must be answered on the form. If a question is not relevant, write N/A or Not Applicable. Use the last page of Form I-751 to provide additional information. If the last page of Form I-751 is not sufficient, attach an extra sheet of paper marking it: Form I-751, Attachment, Name of Petitioner, and Alien Number. The alien must pay a filing fee of $595 and a biometric service fee of $85. Check with the USCIS.gov webpage for the appropriate fees. The form must be signed. In the case of a husband and wife, the form must be signed jointly, unless one of the parties is dead or the parties are divorced. Supporting documents must be attached, including the petitioner’s Permanent Resident card front and back, evidence to establish the bona fides of the marriage, dispositions of criminal charges, arrests, or convictions (if applicable).Form I-751, the supporting documents, and fees must be sent to the proper address. Check with the USCIS.gov webpage for the Direct Filing Addresses for Form I-751. APPROVAL OF PETITION AND REMOVAL OF CONDITION If the I-751 petition is filed in accordance with the provisions of the law and the USCIS determines that the facts and information therein are true, the USCIS will remove the conditional basis of the alien’s status effective as of the second anniversary of the alien’s lawful admission for permanent residence. USCIS will then issue to the alien a new green card for a ten-year period. TERMINATION OF PERMANENT RESIDENT STATUSThe alien’s permanent resident status will be terminated (not removed) by USCIS if the alien fails to file Form I-751 with supporting documents and fees within the 90-day period before the second anniversary of the alien’s lawful admission for permanent residence, unless good cause is shown, or if the alien fails to appear for the interview. The alien’s permanent resident status will also be terminated even if Form I-751 is filed if USCIS determines that the facts and information provided therein are not true and denies the petition. In other words, the alien fails to establish by a preponderance of evidence that the marriage through which the alien obtained lawful permanent resident status is bona fide. WHAT TO DO IF PETITION TO REMOVE CONDITIONS ON RESIDENCE IS DENIEDIf USCIS denies the alien’s Form I-751, the alien is not required to do anything. In such event, USCIS will send the alien a Notice to Appear before an immigration court for removal. The alien can then answer the charges and prove that the marriage to the alien’s spouse is bona fide. The alien may file a Notice of Appeal or Motion using USCIS Form I-290B. Check with the USCIS.gov webpage for the latest edition of the form. Form I-290B and the supporting documents and fees must be filed within 30 days from the date of the Decision denying Form I-751. The alien should choose whether to file a motion to reopen or a motion to reconsider or both. It is usually advisable to file both a motion to reopen and a motion to reconsider. The alien must provide a statement regarding the basis for the motion, specifically identifying an erroneous conclusion of law or fact in the decision being appealed. The alien should attach supporting documents to establish that the marriage is bona fide, including affidavits of the alien, friends, or relatives, plus documents in the joint names of the alien and the alien’s spouse. It is best to submit a brief.There is a filing fee. Form I-290B, its supporting documents, brief, and the fee must be sent to the address specified by USCIS. Check with the USCIS.gov webpage for the fees and filing address.If USCIS grants the Motion, it will render a Decision and issue a new green card. If USCIS denies the Motion, it will refer the matter to the Immigration Court by issuing a Notice to Appear. The alien can answer the charges and prove that the marriage to the alien’s spouse is bona fide.RECOMMENDATION. Filing a Petition to Remove Conditions on Residence is not a joke as some petitioners might think by just going to a travel agent (trouble agent?) rather than a lawyer, to do it. This is not the time to manifest the “save money” mentality. In one case, the alien spent as much as what an attorney would have charged which ranges from $1,500 to $4,000. If the alien is placed in removal proceedings in the Immigration Court because Form I-751 and Form I-290B are denied, it will cost around $10,000 to fight the case.An alien should not think that since obtaining the approval of the adjustment of status application was easy, obtaining the removal of the conditions on residence is equally easy. USCIS will carefully scrutinize the petition, even more than an application for adjustment of status, because the alien has been married for almost two years and should have accumulated enough evidence to establish by a preponderance of evidence that the alien entered into the marriage with the alien’s spouse in good faith.
(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. His current practice focuses on immigration law and appellate criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. Listen to The Tipon Report which he co-hosts with son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is the most witty, interesting, and useful radio program in Hawaii. KNDI 1270 AM band every Thursday at 8 a.m. Atty. Tipon served as a U.S. Immigration Officer. He co-authored the best seller “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration process. He first came to the United States on a student/ exchange visitor visa to study at Yale. He returned to the Philippines to resume practicing law. He came again to the United States on a non-immigrant work visa to write law books, adjusted his status to that of a lawful permanent resident, and became a naturalized citizen. Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645. E-Mail: email@example.com. Websites: www.tiponlaw.com , https://www.hawaiianimmigrationattorney.com , www.bileckilawgroup.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon the contents of this article.)