STARTING on December 10, 2018, the USCIS could waive (or not require) an interview for a married couple seeking to remove conditions on a conditional green card.
Generally, when a U.S. citizen petitions a spouse for a green card, and the spouse receives their green card within two years of the date of marriage, they are given a two-year “conditional” green card. Before the expiration of that two-year green card, the couple must then file a joint petition to remove conditions (Form I-751), and submit evidence to demonstrate the bona fides of the marriage, and that the marriage was not entered into to evade U.S. immigration laws. In other words, demonstrate that it was not a fixed marriage.
If the couple cannot file a joint petition to remove conditions, because the marriage broke down, they divorced, etc., the conditional resident would file a “waiver” of the requirement to file a joint petition and seek to remove the conditions on their green card alone.
In adjudicating these petitions to remove conditions, the couple (or the person seeking a waiver of the joint petition) could be required to attend an interview to enable the officer to more fully evaluate whether or not this was a bona fide marriage. However, under a new Policy Memorandum, the USCIS could waive (or not require) a marital interview under certain circumstances:
• The petition to remove conditions contains sufficient evidence about the bona fides of the marriage, and demonstrates the marriage was not fixed. This might include extensive joint documents, pictures together, possibly a baby born during the past two years, and other evidence showing this truly was a love marriage, and not one of convenience.
• The petitioner had already been interviewed in connection with the case, either in connection with the original spousal petition (Form I-130) or the adjustment of status (Form I-485).
• There is no indication of fraud or misrepresentation in the Form I-751 or supporting documentation; and
• There are no complex facts or issues that require an interview to resolve questions or concerns. Some complex issues might include the couple is not living together, perhaps because of job location; the couple is now separated, maybe one spouse had a child outside of marriage during those two years, etc.
Of course, there is no guarantee or assurance that any interview on removing the conditional status will be waived. However, if you have filed a joint petition to remove conditions (or a waiver of the joint petition and are filing on your own) and are being called in for an interview, that could be a sign your case has certain problems, whether it is the bona fides of the marriage, possible fraud issues etc. In such a situation, I would strongly recommend to seek the advice of an attorney, who can evaluate your situation, and possibly represent you at that interview and make sure your case is properly documented and demonstrates the bona fides of your marriage. This is especially important because if the petition to remove conditions is denied, USCIS could place the person in deportation/removal proceedings.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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