Removal of conditions on residence and waiver of joint filing

Under INA 216(a)(1), an alien who: (1) applies for lawful permanent residence (LPR) based on marriage to a US citizen (USC) or LPR spouse; and (2) such marriage was entered less than 2 years at the time LPR status is granted, such alien acquires LPR status on a conditional basis. There are two ways to remove the conditional basis of LPR status: (a) through a joint petition; or (b) by means of a waiver of the joint petition requirement.

Under INA 216(c)(1), the alien and the USC or LPR spouse must file a joint petition to remove the conditional basis of LPR status within the 90-day period before the second year on which the alien obtained LPR status. If no joint petition is filed within the 90-day period, the alien’s LPR status would be terminated and the alien would be placed in removal proceedings. If the joint petition is filed late, the petition may be considered if the alien establishes good cause and extenuating circumstances for failing to file within the 90-day period.

If the alien cannot file a joint petition, INA 216(c)(4) allows an alien to file a waiver of this joint petition requirement by demonstrating that: (1) extreme hardship would result if the alien is removed; or (2) the qualifying marriage was entered in good faith but the marriage was terminated and the alien was not at fault in failing to file a joint petition; or (3) the qualifying marriage was entered in good faith but during the marriage the alien was battered or subjected to extreme cruelty by the USC or LPR spouse and the alien was not at fault in failing to file a joint petition.

In this article, we’ll focus on the waiver of joint filing based on extreme hardship.

In Matter of Munroe, 26 I&N Dec. 428 (BIA 2014), the Board of Immigration Appeals (BIA) dealt with the issue of what is the relevant time period for determining extreme hardship for a waiver under INA 216(c)(4)(A). The alien in that case was admitted into the US on July 3, 1997 as a conditional LPR. She separated from her husband 2 weeks later and divorced on March 24, 1999. On August 19, 1999, she requested a waiver of the joint filing requirement. On August 6, 2004, USCIS denied this request.

On May 31, 2005, she filed a second waiver request based on the termination of her good faith marriage. On March 8, 2006, USCIS denied the second request. On May 4, 2007, alien married her current LPR husband with whom she has three USC children. On January 17, 2008, she filed a third waiver request, this time claiming that she would suffer extreme hardship if she were deported because she would be separated from her second husband and her children.

USCIS found that the period for determining extreme hardship began on July 3, 1997, when the respondent was granted conditional LPR status, and ended on July 3, 1999, when her status automatically terminated. USCIS denied the third waiver request because the hardship she claimed was not based on circumstances occurring during that 2-year period. Each time the alien filed her waiver request, USCIS extended her conditional LPR status for 1 year.

The Immigration Judge (IJ) found that the relevant period for determining extreme hardship continued at least until August 6, 2004, when USCIS denied the alien’s first waiver request. Thus, the IJ considered the hardship on the alien’s first child, who was born in November 2001, and granted the application. The BIA disagreed.

INA 216(c)(4) provides that, in determining extreme hardship, “circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis” shall be considered. The IJ interpreted this provision to mean that the relevant period is flexible and open-ended but the BIA held that such period was fixed. Thus, the BIA held that the relevant period is the period when the alien was originally granted conditional LPR status. Hence, in the case of the alien in Matter of Munroe that period ended on July 3, 1999, regardless of subsequent extensions.

The BIA pointed out that the other waivers of the joint filing requirement deal with matters related to the marriage that generated the conditional LPR status. It reasoned that the hardship waiver under INA 216(c)(4)(A) should also relate in some way to that marriage. Hence, limiting the hardship period to the 2-year conditional LPR period ensures that the waiver will only address hardships related to the marriage and will not become so open-ended that it essentially creates an entirely new avenue for relief. The BIA also explained that if it adopted the IJ’s ruling, a conditional LPR could unilaterally extend the hardship period by continuing to apply for waivers until extreme hardship was accumulated. An alien in this situation would be able to claim hardship that is completely unrelated to the underlying status that gave rise to the waiver.

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Charles Medina practices immigration law. Visit his website at medinalawgroup.net for more details. This article provides general information only and does not provide legal advice on any specific matter or predict the outcome of any legal matter. It does not invite or create an attorney-client relationship.