[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR216.4]



[Page 391-393]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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 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:



[[Page 392]]



    (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, 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



[[Page 393]]



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 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]