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I’ve Been Invited for a Conditional Status I-751 Interview. Why?

Removal of Conditions on U.S. Residence — Background

An immigrant beneficiary of an approved petition from their U.S. citizen spouse, who has been married to that spouse for less than two years, will be granted Conditional Resident Status by the U.S. Citizenship and Service (USCIS) if their case is approved. Conditional Status means that their Green Card is only valid for two years. In the 90-day period preceding the expiration of the Green Card, the couple must file a joint petition using Form I-751 to remove the Conditions on Residence, thereafter making the immigrant’s status “permanent”.

The joint filing requirement is intended to act as a deterrent to marriage/green card fraud, and to provide immigration officials an opportunity to review their previous decision. Essentially, they want to know that the marital relationship was, and continues to be, a legitimate one. The joint petition filing must be signed by both spouses and be accompanied by strong proof of the ongoing marital relationship. Comingling of finances, evidence of cohabitation, and photographs together are examples of documents that can be submitted. An approved petition results in permanent resident status for the immigrant, with conditions removed. If the joint petition is denied, the immigrant’s status as a Conditional Resident is terminated, and they are often referred to Immigration Court for Removal Proceedings.

If, after approval of the Conditional Resident status, the couple is not able to file jointly to remove the conditions—such as due to separation or divorce—the immigrant may request a waiver of the joint filing requirement under Section 216(b)(4) of the Immigration and Nationality Act (INA). A waiver can generally be sought if the marriage was entered into in good faith, if the immigrant suffered abuse in the relationship or if the immigrant would suffer extreme hardship if forced to return to their home country. Far from a guaranteed approval, the filing of any petition to remove conditions—whether jointly filed or as a waiver—should be accompanied by substantially probative evidence, including detailed declarations describing the evolution of the relationship.

So, why the Interview?

As a broad rule, USCIS can schedule an interview for any benefit, at any time, at its convenience, if it will assist it in carrying out its duty of adjudicating immigration benefits under applicable law and regulations. In fact, under Section 216(d)(3) an I-751 personal interview “shall be conducted within 90 days after the date of submitting a petition … at a local office of the Service”. Critically, the same section of law also allows the interview requirement to be waived.

In I-751 cases, an interview at a local USCIS field office is scheduled in less than half of filings. This author—who has worked on Conditional Resident cases for over a decade—estimates that approximately 25-40% of I-751 cases are scheduled for an interview. A couple can be called in for an interview together when they file jointly, or if a waiver is requested, the applicant is called in alone. The reasons for an interview vary, but generally fall into three categories: 1) for the officer to evaluate whether the marriage is (or was) real; 2) due to another inadmissibility, such as a criminal record or undisclosed previous immigration issue; or 3) to discuss other eligibility grounds (such as the nature of the abuse, if submitting an abused spouse waiver). An interview may also be scheduled completely at random.

If an I-751 joint-filing couple or an individual applicant filing a waiver is called in for an interview, this is not a cause for concern. It does not mean that something has gone wrong in the case and that a denial is necessarily forthcoming. A refrain we often hear from clients is, “my friend’s case was approved without an interview, why am I being summoned for an interview?” Again, in some cases, an interview is scheduled completely at random. Having said that, the interview should be taken seriously and prepared for in advance. Remember, if the I-751 is denied, the applicant is often referred to immigration court for Removal Proceedings. Whether filing jointly as a couple or individually based on a good faith, abused spouse or extreme hardship waiver, all of the details of the case should be reviewed prior to the interview in a detailed discussion with a licensed immigration attorney. This is the best way to ensure that the proper documents are on-hand and that the couple or individual applicant are aware of the relevant issues/questions which will be raised.

 

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