[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR216.4]

[Page 389-392]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
      CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND 
                             NATURALIZATION)
 
PART 216_CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS--Table of 
Contents
 
Sec.  216.4  Joint petition to remove conditional basis of lawful 
permanent resident status for alien spouse.

    (a) Filing the petition--(1) General procedures. Within the 90-day 
period immediately preceding the second anniversary of the date on which 
the alien obtained permanent residence, the alien and the alien's spouse 
who filed the original immigrant visa petition or fiance/fiancee 
petition through which the alien obtained permanent residence must file 
a Petition to Remove the Conditions on Residence (Form I-751) with the 
Service. The petition shall be filed within this time period regardless 
of the amount of physical presence which the alien has accumulated in 
the United States. Before Form I-751 may be considered as properly 
filed, it must be accompanied by the fee required under Sec.  103.7(b) 
of this chapter and by documentation as described in paragraph (a)(5) of 
this section, and it must be properly signed by the alien and the 
alien's spouse. If the joint petition cannot be filed due to the 
termination of the marriage through annulment, divorce, or the death of 
the petitioning spouse, or if the petitioning spouse refuses to join in 
the filing of the petition, the conditional permanent resident may apply 
for a waiver of the requirement to file the joint petition in accordance 
with the provisions of Sec.  216.5 of this part. Upon receipt of a 
properly filed Form I-751, the alien's conditional permanent resident 
status shall be extended automatically, if necessary, until such time as 
the director has adjudicated the petition.
    (2) Dependent children. Dependent children of a conditional 
permanent resident who acquired conditional permanent resident status 
concurrently with the parent may be included in the joint petition filed 
by the parent and the parent's petitioning spouse. A child

[[Page 390]]

shall be deemed to have acquired conditional residence status 
concurrently with the parent if the child's residence was acquired on 
the same date or within 90 days thereafter. Children who cannot be 
included in a joint petition filed by the parent and parent's 
petitioning spouse due to the child's not having acquired conditional 
resident status concurrently with the parent, the death of the parent, 
or other reasons may file a separate Petition to Remove the Conditions 
on Residence (Form I-751).
    (3) Jurisdiction. Form I-751 shall be filed with the director of the 
regional service center having jurisdiction over the alien's place of 
residence.
    (4) Physical presence at time of filing. A petition may be filed 
regardless of whether the alien is physically present in the United 
States. However, if the alien is outside the United States at the time 
of filing, he or she must return to the United States, with his or her 
spouse and dependent children, to comply with the interview requirements 
contained in the Act. Furthermore, if the documentation submitted in 
support of the petition includes affidavits of third parties having 
knowledge of the bona fides of the marital relationship, the petitioner 
must arrange for the affiants to be present at the interview, at no 
expense to the government. Once the petition has been properly filed, 
the alien may travel outside the United States and return if in 
possession of documentation as set forth in Sec.  211.1(b)(1) of this 
chapter, provided the alien and the petitioning spouse comply with the 
interview requirements described in Sec.  216.4(b). An alien who is not 
physically present in the United States during the filing period but 
subsequently applies for admission to the United States shall be 
processed in accordance with Sec.  235.11 of this chapter.
    (5) Documentation. Form I-751 shall be accompanied by evidence that 
the marriage was not entered into for the purpose of evading the 
immigration laws of the United States. Such evidence may include:
    (i) Documentation showing joint ownership of property;
    (ii) Lease showing joint tenancy of a common residence;
    (iii) Documentation showing commingling of financial resources;
    (iv) Birth certificates of children born to the marriage;
    (v) Affidavits of third parties having knowledge of the bona fides 
of the marital relationship, or
    (vi) Other documentation establishing that the marriage was not 
entered into in order to evade the immigration laws of the United 
States.
    (6) Termination of status for failure to file petition. Failure to 
properly file Form I-751 within the 90-day period immediately preceding 
the second anniversary of the date on which the alien obtained lawful 
permanent residence on a conditional basis shall result in the automatic 
termination of the alien's permanent residence status and the initiation 
of proceedings to remove the alien from the United States. In such 
proceedings the burden shall be on the alien to establish that he or she 
complied with the requirement to file the joint petition within the 
designated period. Form I-751 may be filed after the expiration of the 
90-day period only if the alien establishes to the satisfaction of the 
director, in writing, that there was good cause for the failure to file 
Form I-751 within the required time period. If the joint petition is 
filed prior to the jurisdiction vesting with the immigration judge in 
removal proceedings and the director excuses the late filing and 
approves the petition, he or she shall restore the alien's permanent 
residence status, remove the conditional basis of such status and cancel 
any outstanding notice to appear in accordance with Sec.  239.2 of this 
chapter. If the joint petition is not filed until after jurisdiction 
vests with the immigration judge, the immigration judge may terminate 
the matter upon joint motion by the alien and the Service.
    (b) Interview--(1) Authority to waive interview. The director of the 
regional service center shall review the Form I-751 filed by the alien 
and the alien's spouse to determine whether to waive the interview 
required by the Act. If satisfied that the marriage was not for the 
purpose of evading the immigration laws, the regional service center 
director may waive the interview and approve the petition. If not so 
satisfied,

[[Page 391]]

then the regional service center director shall forward the petition to 
the district director having jurisdiction over the place of the alien's 
residence so that an interview of both the alien and the alien's spouse 
may be conducted. The director must either waive the requirement for an 
interview and adjudicate the petition or arrange for an interview within 
90 days of the date on which the petition was properly filed.
    (2) Location of interview. Unless waived, an interview on the Form 
I-751 shall be conducted by an immigration examiner or other officer so 
designated by the district director at the district office, files 
control office or suboffice having jurisdiction over the residence of 
the joint petitioners.
    (3) Termination of status for failure to appear for interview. If 
the conditional resident alien and/or the petitioning spouse fail to 
appear for an interview in connection with the joint petition required 
by section 216(c) of the Act, the alien's permanent residence status 
will be automatically terminated as of the second anniversary of the 
date on which the alien obtained permanent residence. The alien shall be 
provided with written notification of the termination and the reasons 
therefor, and a notice to appear shall be issued placing the alien under 
removal proceedings. The alien may seek review of the decision to 
terminate his or her status in such proceedings, but the burden shall be 
on the alien to establish compliance with the interview requirements. If 
the alien submits a written request that the interview be rescheduled or 
that the interview be waived, and the director determines that there is 
good cause for granting the request, the interview may be rescheduled or 
waived, as appropriate. If the interview is rescheduled at the request 
of the petitioners, the Service shall not be required to conduct the 
interview within the 90-day period following the filing of the petition.
    (c) Adjudication of petition. The director shall adjudicate the 
petition within 90 days of the date of the interview, unless the 
interview is waived in accordance with paragraph (b)(1) of this section. 
In adjudicating the petition the director shall determine whether--
    (1) The qualifying marriage was entered into in accordance with the 
laws of the place where the marriage took place;
    (2) The qualifying marriage has been judicially annulled or 
terminated, other than through the death of a spouse;
    (3) The qualifying marriage was entered into for the purpose of 
procuring permanent residence status for the alien; or
    (4) A fee or other consideration was given (other than a fee or 
other consideration to an attorney for assistance in preparation of a 
lawful petition) in connection with the filing of the petition through 
which the alien obtained conditional permanent residence. If derogatory 
information is determined regarding any of these issues, the director 
shall offer the petitioners the opportunity to rebut such information. 
If the petitioners fail to overcome such derogatory information the 
director may deny the joint petition, terminate the alien's permanent 
residence, and issue a notice to appear to initiate removal proceedings. 
If derogatory information not relating to any of these issues is 
determined during the course of the interview, such information shall be 
forwarded to the investigations unit for appropriate action. If no 
unresolved derogatory information is determined relating to these 
issues, the petition shall be approved and the conditional basis of the 
alien's permanent residence status removed, regardless of any action 
taken or contemplated regarding other possible grounds for removal.
    (d) Decision--(1) Approval. If the director approves the joint 
petition he or she shall provide written notice of the decision to the 
alien and shall require the alien to report to the appropriate office of 
the Service for processing for a new Permanent Resident Card (if 
necessary), at which time the alien shall surrender any Permanent 
Resident Card previously issued.
    (2) Denial. If the director denies the joint petition, he or she 
shall provide written notice to the alien of the decision and the 
reason(s) therefor and shall issue a notice to appear under section 239 
of the Act and 8 CFR part

[[Page 392]]

239. The alien's lawful permanent resident status shall be terminated as 
of the date of the director's written decision. The alien shall also be 
instructed to surrender any Permanent Resident Card previously issued by 
the Service. No appeal shall lie from the decision of the director; 
however, the alien may seek review of the decision in removal 
proceedings. In such proceedings the burden of proof shall be on the 
Service to establish, by a preponderance of the evidence, that the facts 
and information set forth by the petitioners are not true or that the 
petition was properly denied.

[53 FR 30018, Aug. 10, 1988, as amended at 54 FR 30369, July 20, 1989; 
59 FR 26590, May 23, 1994; 62 FR 10349, Mar. 6, 1997; 63 FR 70315, Dec. 
21, 1998]