• Introduction
• Background
• Policy in the PM
• Conclusion

Introduction

On November 30, 2018, the United States Citizenship and Immigration Services (USCIS) published Policy Memorandum (PM)-602-0168, “Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence” [PDF version]. PM-602-0168 provides a small clarification to the guidelines for granting waivers of the interview requirement for an applicant seeking to remove conditions on his or her permanent residency obtained through marriage to a U.S. citizen or lawful permanent resident.

In this article, we will briefly examine the new PM.

Background

If a foreign national obtains lawful permanent resident status based on a marriage that is less than two years old, he or she will only gain lawful permanent resident status on a conditional basis. This conditional permanent resident status will extend to any qualifying derivative children of the foreign national. Conditional permanent resident status only lasts for two years. Before the end of that two-year period, the conditional permanent resident must apply for the removal of conditions from his or her conditional permanent resident status.

In order to apply for the removal of conditions in marriage-based cases, the conditional permanent resident must normally jointly file the Form I-751, Petition to Remove Conditions, with his or her spouse. However, in certain cases which we will discuss, a conditional permanent resident may procure a waiver of the joint-filing requirement. In either case, the conditional permanent resident is required to submit evidence showing the bona fides of the marriage (unless a waiver is sought on extreme hardship grounds).

In most cases, the USCIS requires the conditional permanent resident and, where applicable, his or her spouse, to appear for an interview during the Form I-751 adjudication process. This requirement is found in section 216(c)(1)(B) of the Immigration and Nationality Act (INA). However, as outlined in section 216(d)(3) of the INA and 8 C.F.R. 216.4(b)(1), the USCIS may, in its discretion, waive the interview requirement and adjudicate the petition.

Policy in the PM

In order to waive the interview requirement, the adjudicating officers must be satisfied that (quoted):

They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
For Form I-751 cases received on/after December 10, 2018, USCIS has previously interviewed the Form I-751 principal petitioner (for example, for a Form I-485 or Form I-130);
There is no indication of fraud or misrepresentation in the Form I-751 of the supporting documentation; and
There are no complex facts or issues that require an interview to resolve questions or concerns.

The new PM makes clear that the above conditions “apply regardless of whether the Form I-751 is filed as a joint petition or as a waiver of the joint filing requirement.” In short, the USCIS will apply the same standard for considering interview waivers to jointly filed Forms I-751 and Forms I-751 filed with a request for a waiver from the joint filing requirement.

Conclusion

Applicants seeking the removal of conditions on lawful permanent resident status are well advised to consult with an experienced immigration attorney for guidance throughout the process. This is especially important in more complicated cases. To learn more about the removal of conditions, please see our growing collection of articles on the issue [see category]. We discuss family immigration in a separate section [see category].