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Immigration Law and Procedure
by Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr
Copyright 2004, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Part 5 IMMIGRANTS
Chapter 42 Conditional Residence for Certain Spouses and Children, and Other Limitations Imposed by 1986 Marriage Fraud Amendments *
4-42 Immigration Law and Procedure § 42.06
§ 42.06 Procedure for Decision on Joint Petitions and Waiver Applications
[1]--INS Interview
Although the Immigration and Nationality Act (INA) requires a personal interview before an alien's conditional residence is lifted, 1 the INS often waives the interview requirement in joint petition cases. Within 90 days after the filing of a joint petition, the INS should either waive the interview and approve the petition, or conduct the interview. 2 However, the Service can deny a petition even if it fails to conduct the interview within 90 days. 3 There is no corresponding time limit for conducting the interview where the alien files a waiver application.
The director of the regional service center can waive or schedule interviews where joint petitions or waivers have been filed. If satisfied that the marriage was bona fide, the director may waive the interview and approve the petition or waiver request. 4 If not satisfied, the director refers the alien's file to the INS office having jurisdiction over the alien's place of residence for an interview. 5 The Service also sometimes conducts random interviews of joint petitions or waiver requests. Although interviews may be required before both joint petitions and waiver requests are adjudicated, the language of the regulation, and the doubts that may arise from the absence of the petitioning spouse, suggest that a personal interview may be required more frequently when a waiver application is submitted. 6
If the conditional resident, or either spouse in the case of a joint petition, fails to appear for the interview, the director will deny the petition or waiver request, terminate the alien's permanent residence status, and begin removal proceedings. 7 The alien will receive written notice of the termination and the reasons for the decision. 8 The alien may ask the INS to reconsider its decision to terminate his or her status, but the alien will bear the burden of showing compliance with the interview requirements. 9 If the alien submits a written request that the interview be rescheduled or that the interview be waived, the INS may grant the request for good cause and rescind the notice of termination and notice to appear. 10
[2]--Decision
If the joint petition is properly filed and the parties appear for any required interview, the INS is supposed to make a decision within 90 days of the date of the interview, unless the interview is waived. 11 There is no corresponding time limit for adjudicating waiver applications. The INS considers whether the facts and information alleged in the joint petition or waiver application are true. 12 Failure of the INS to adjudicate a petition within the 90-day period does not result in the automatic approval of the petition. 13 Nor will a court necessarily allow a mandamus action if the INS does not act on the joint petition or waiver application in a timely manner. 14
If the director approves the joint petition or waiver request, the INS notifies the parties and removes the condition, effective as of the second anniversary of the grant of conditional permanent residence. 15 In such cases, the period during which the alien was in conditional residence status is considered as part of the period of lawful permanent residence required for naturalization. 16 The alien is also asked to report to the appropriate INS office for processing of a new Permanent Resident Card (Form I-551) reflecting the alien's full lawful permanent resident status. 17 At that time the alien must surrender any previously issued residence cards.
If negative information arises, the director must offer the petitioners an opportunity to rebut the information. 18 If the petitioner fails to overcome the derogatory information, the INS may deny the petition or waiver request, giving the reasons for such denial, terminate the alien's conditional permanent resident status, and issue an order to show cause in removal proceedings. 19 The alien also is notified that the permanent resident status is terminated as of the date of the written decision, and that he or she must surrender the residence card.
[3]--Review of Decision
Although the INA and INS regulations specify no administrative appeal of a denial of a joint petition or waiver request, the alien can ask the Service to certify the case to the INS's Administrative Appeals Unit (AAU). 20 More often, an alien whose joint petition or waiver application has been denied seeks review of that decision by an immigration judge (IJ) in a removal proceeding. 21 However, in such proceedings, the IJ cannot accept or consider a joint petition or waiver application that had not been considered previously by the INS. 22 Where appropriate, the judge may continue the proceedings to allow the INS to adjudicate a late-filed joint petition or waiver application. 23
For work authorization purposes, a conditional resident who has renewed an I-751 in proceedings does not need an employment authorization document because the alien is still considered a permanent resident. 24
In the removal proceeding, the INS bears the burden of proof, but the alien has the burden of showing that he or she is eligible for the waiver or other discretionary relief. 25 However, if the alien's conditional residence was terminated before the two-year anniversary of the marriage based on an allegation that the marriage was a sham or was terminated, the Service bears the burden of showing by a preponderance of the evidence that one of the conditions for termination of status was met. 26
When reviewing the Service decision, the IJ reviews the denial de novo and may consider any additional evidence submitted by the alien. 27 If the INS has based its decision on derogatory information submitted by the U.S. spouse, for example, the alien may present counter-evidence or question the U.S. spouse in the deportation hearing. Under the regulatory scheme, the IJ must either uphold the INS's denial of the petition or waiver, or reverse the INS and grant the petition or waiver. 28
The IJ may exclude the public in any case involving an abused spouse or child. 29
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