After the Love is Gone I-751 Waivers - cdn. · PDF filegood faith and the couple has remained...

Click here to load reader

  • date post

    13-Aug-2018
  • Category

    Documents

  • view

    212
  • download

    0

Embed Size (px)

Transcript of After the Love is Gone I-751 Waivers - cdn. · PDF filegood faith and the couple has remained...

  • After the Love is Gone I-751 Waivers

    February 14, 2013 MSBA Immigration Law Section Webinar Conference

    1

    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.

    2

    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.

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

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

    3

  • Overview of the Types of I-751 Waivers

    The termination of the beneficiarys 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.

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

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

    4

  • 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:

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

    5

  • Is this a Matter of Dual Representation?

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

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

    6

  • 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.

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

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

    7

  • 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. Kurzbans 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.

    8

  • 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).

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

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

    9

  • 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).

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

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

    11

  • 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].

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

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

    12

  • 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

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

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

    13

  • Legal Resources

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

    Kurzbans 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

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

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

    14

    http://www.aila.org/http://www.uscis.gov/

  • 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

    groomes@groomes.com

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

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

    15

    http://www.groomes.com/mailto:groomes@groomes.com

    After the Love is GoneI-751 WaiversAnatomy of the I-751 ProcessConditional Residency DefinedOverview of the Types of I-751 WaiversOverview of the Types of I-751 WaiversIs this a Matter of Dual Representation?The I-751 Waiver: The Marriage was Terminated due to Divorce or AnnulmentCurrent Marital StatusCouple is Still Legally MarriedCurrent Marital StatusCouple is DivorcedNotice of AppearNotice to AppearContinuedNotice to Appear ContinuedPractice Pointers/ Q & ALegal ResourcesLaw Offices of Cynthia A. Groomes, P.C.