USCIS updates

On December 12, 2023, the US Citizenship and Immigration Services issued an updated guidance on family-based conditional permanent residence which specifically consolidates and updates guidance on eligibility, filing, and adjudication for Form I-751, Petition to Remove Conditions on Residence.

By way of background, there is an existing immigration law known as Immigration Marriage Fraud Amendments of 1986 (IMFA) which prevents marriage fraud committed by noncitizens. Those who obtained permanent resident status based on a marriage that began less than two years before obtaining that status receives such permanent resident status on a conditional basis for two years. In order for those conditions to be removed, the conditional permanent resident (CPR) generally must file a Petition to Remove Conditions on Residence under Form I-751 within the 90-day period preceding the two-year anniversary of obtaining CPR status. In the form, there are several bases of filing upon which the CPR can choose.

The update clarifies what CPRs must do to change the basis of filing in cases of waivers based on battery or extreme cruelty. It also clarifies that if the CPR's conditional permanent resident status is terminated for failing to timely file Form I-751, they may be eligible to adjust permanent resident status on a new basis. This is true even if USCIS issues a notice of termination of conditional permanent resident status before the noncitizen files Form I-485, Application to Register Permanent Residence or Adjust Status. This latest guidance is effective immediately and applies prospectively to applications filed on or after December 12, 2023.

* * *

Speaking of filing Form I-751, it is important that you should be aware when to file it and check off the correct basis for filing. I have seen instances where the form was filed late and there was no valid explanation. USCIS sends out a letter in advance reminding the 90-day time period. Also, this is very important. Please do not lie in your petition. I have seen instances where couples have already been separated yet still filed the form jointly. It is downright fraudulent and could be a basis for criminal prosecution.

When you are filing on the basis of battery or extreme cruelty, make sure you have all the evidence necessary. Police reports, medical records, photos of injuries, affidavits, expert witnesses and other relevant evidence must be submitted in your petition in order to obtain a high chance of approval.