After the Love is Gone I-751 Waivers - cdn.laruta.io · good faith and the couple has remained...

After the Love is Gone I-751 Waivers

February 14, 2013 MSBA Immigration Law Section Webinar Conference

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February 14, 2013 MSBA Immigration Law Section Webinar Conference - Presenter: ©2013

Mrs. Cynthia Groomes Katz, Esquire Law Offices of Cynthia A. Groomes, P.C.

Anatomy of the I-751 Process

February 14, 2013 MSBA Immigration Law Section Webinar Conference - Presenter:

©2013 Mrs. Cynthia Groomes Katz, Esquire Law Offices of Cynthia A. Groomes, P.C.

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A Waiver of the

Joint Petition

Conditional Residency Defined

• Marriage results in conditional residence (CR) unless it is more than 2 years old at the time of granting the immigrant status. INA §216, 8 USC § 1186a.

• The two period is measured from the time residency is granted.



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Overview of the Types of I-751 Waivers

• The termination of the beneficiary’s status and removal would result in extreme hardship.

• The Beneficiary Entered into the Marriage in good faith, but his/her spouse subsequently died.

• The Beneficiary Entered into the Marriage in good faith, but the marriage was later terminated due to divorce or annulment.



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Overview of the Types of I-751 Waivers

• The Beneficiary Entered into the Marriage in good faith and the couple has remained married, but the beneficiary has been battered or subjected to extreme cruelty by the U.S. citizen or permanent resident spouse.

February 14, 2013 MSBA Immigration Law Section Webinar Conference Presenter:


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Is this a Matter of Dual Representation?



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The I-751 Waiver: The Marriage was Terminated due to Divorce or Annulment

• If the parties cannot file jointly (where, for example, the couple is divorced), the noncitizen may file a waiver of the joint filing requirement on Form I-751. 8 CFR 216.5, 1216.5.

• When do “we” File the Waiver? The I-130 Beneficiary may file the I-751 petition at any time after s/he is granted conditional resident status and before s/he is removed.



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Current Marital Status Couple is Still Legally Married

• Couple files jointly but is Legally Separated and/ or the Divorce/Annulment is Pending: – USCIS issues the Conditional Resident a Request for

Evidence (RFE) allowing 87 days to provide a decree of divorce/annulment.

• Decree submitted: If the decree is submitted within that time period, the officer will amend the petition to treat it as a waiver petition.

• Failure to submit the Decree: USCIS takes the position that the couple is still legally married. The officer will adjudicate the I-751 as a joint petition. Kurzban’s Immigration Law Sourcebook , 13th Edition, 965 (2012 ed.) (hereinafter Kurzban) citing Memo, Neufeld, Acting Assoc. Director , USCIS, I-751 Filed Prior to Termination of Marriage (Apr. 3, 2009) at 2-3, published on AILA InfoNet at Doc. No. 09072166. February 14, 2013 MSBA Immigration Law

Section Webinar Conference - Presenter: ©2013 Mrs. Cynthia Groomes Katz, Esquire

Law Offices of Cynthia A. Groomes, P.C.

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Current Marital Status

Couple is Divorced • If the couple divorces before filing a joint petition, the

foreign national cannot file the I-751 waiver until the divorce is final. Kurzban citing Memo, Yates, Acting Assoc. Director of Operations, BUSCIS (Apr. 10, 2003), published on AILA InfoNet at Doc. No. 03050643 (May 6, 2003).



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Notice of Appear • If USCIS denies the I-751 petition, the applicant is

placed in removal proceedings. INA §237(a)(1)(D), 8 USC §1227(a)(1)(D); 8 CFR §§216.4 (d)(2), 1216.4 (d)(2).

• There is no appeal of a denied petition except in removal proceedings. 8 CFR §§216.4 (d), 216.5 (f); 1216.5 (f); Matter of Mendes, 20 I&N Dec. 833 (BIA 1994).

• Applicant cannot file the I-751 with the Immigration Judge in the first instance. Legal Opinion, Cook, General Counsel (Jan. 9, 1990), reprinted in 67 No. 6 Interpreter Releases 159, 170 (Feb. 5, 1990). February 14, 2013 MSBA Immigration Law

Section Webinar Conference -Presenter: ©2013 Mrs. Cynthia Groomes Katz, Esquire

Law Offices of Cynthia A. Groomes, P.C. 10

Notice to Appear Continued

• An Immigration Judge can only review the denial of a waiver by USCIS. Matter of Lemhammad, 20 I&N Dec. 316 (BIA 1991).

• Recurring Board of Immigration Appeals (BIA) Cases: – Matter of Stowers, 22 I&N Dec. 605 (BIA 1999). – Matter of Tee, 20 I&N Dec. 949 (BIA 1995). – Matter of Anderson, 20 I&N Dec. 888 (BIA 1994). – Matter of Mendes, 20 I&N Dec. 833 (BIA 1994). – Matter of Lemhammad, 20 I&N Dec. 316 (BIA

1991).



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Notice to Appear Continued

FN placed into proceedings before the divorce is final? ● Ask the Immigration Judge to continue proceedings

until the divorce is final. ● Alternative thought: Move to reopen proceedings

based upon the finality of the divorce and the ability to now file the I-751 waiver. Alrefae v. Gonzales, 471 F.3d 353, 361-63 (2dCir. 2006) [reversing the Immigration Judge for failure to consider reopening proceedings where respondent was divorced and could file the I-751 but offering no view on whether it was untimely].



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Practice Pointers/ Q & A

• Conflict of Interest

• Will the ex-spouse assist?

• Evidence to Present

• Burden of Proof

• Preparing your client for the USCIS Interview

• Preparing your client for Immigration Court



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Legal Resources

• American Immigration Lawyers Association – InfoNet at www.aila.org.

• Kurzban’s Immigration Law Sourcebook Thirteenth Edition.

• U.S. Department of Homeland Security United States Citizenship and Immigration Services at www.uscis.gov.

• U.S. Department of Justice – Executive Office for Immigration Review: Practice Manual



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Law Offices of Cynthia A. Groomes, P.C.

Presenter: Mrs. Cynthia Groomes Katz, Attorney and

Counselor-at-Law Founder

7272 Wisconsin Avenue, Suite 30

Bethesda, Maryland 20814 www.groomes.com

[email protected]



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