USCIS Memo Accepting I-130

SUBJECT: Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage

In recent months, several questions have been raised regarding whether a conditional resident can file a waiver of the joint petitioning requirement on Form I-751 after commencement of divorce or annulment proceedings but prior to final termination of the marriage. This memorandum clarifies the Immigration and Naturalization Service’s (Service) position on this issue.

Filing a Form I-751 prior to final termination of the marriage
According to section 216(c)(4)(B) of the Act, a waiver of the joint filing requirement may be granted if the alien spouse can establish that “the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1)”. The statute clearly requires that the marriage already be terminated and, thus, the mere commencement of divorce proceedings is not sufficient. Further, in Matter of Anderson, 20 I&N Dec. 888 (BIA 1994), it was determined that an alien spouse:

[W]as ineligible to apply for a waiver under section 216(c)(4)(B) [of the Act] because she remained married to her husband . . . if the respondent had become statutorily eligible to apply for the section 216(c)(4)(B) waiver by virtue of changed circumstances, i.e., through the termination of her marriage . . . she could have sought a continuance from the immigration judge to pursue her alternative application with the Service.

In addition, the instructions to the Form I-751 clearly state that:

[Y]ou may apply for a waiver of th[e] joint filing requirement on this form if . . . you entered into the marriage in good faith, but the marriage was later terminated due to divorce or annulment . . . If you are filing to waive the joint filing requirement because your marriage has been terminated, also submit a copy of the divorce decree or other document terminating or annulling the marriage with your petition.

As such, an alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien’s conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12).

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