Clarifying the Immigration Marriage Fraud Amendments Act of 1986 and INA 216 Regarding Conditional Residents and Form I-751
The Immigration Marriage Fraud Amendments Act of 1986 was enacted because of Congress’s growing concern over aliens seeking permanent residence in the US on the basis of marriage to a US citizen or permanent resident. Congress heard several accounts from US citizens who had been victimized by ex-spouses who married for the sole purpose of obtaining a marriage-based green card. Similarly, government adjudicators offered accounts of couples (a US citizen and foreign born spouse) acting in concert to obtain permanent residency for the alien spouse either as a friendly agreement or as a financial arrangement. (There was also a movie starring Gerard Depardieu and Andie MacDowell.) In such cases, the couple would dissolve the marriage shortly after the alien’s marriage based green card was approved.
In response to these concerns, Congress passed the Immigration Marriage Fraud Amendments Act of 1986 adding INA 216, which created a conditional residence requirement for aliens who acquire permanent residency based on new marriages. Under INA 216 conditional residents must petition USCIS (then called INS) approximately two years after obtaining the green card. The alien spouse and US citizen must file and I-751 and provide evidence that the couple was still married and conducting themselves as would be expected of a married couple. Section 216 also included a waiver provision as Congress acknowledged that in some circumstances it would be inappropriate to terminate the alien’s residency and deport the alien merely because the marriage did not last. (For more on the I-751 process . . .)
INA 216′s conditional residency requirements apply to:
- Any alien who, based upon a marriage to either a US citizen or lawful permanent resident obtains permanent residency within two years of such marriage, and
- Any child of such alien who also obtains permanent residency through his or her parent’s marriage within two years of the marriage.
NOTE: The crucial date when calculating the two years of marriage is at the time of adjustment or admission. For example, if the alien files the I-485 when the alien has been married for one year and six months, but the adjustment interview (and approval) does not occur until after the second anniversary, the alien is not subject to INA 216. Likewise, if the alien consular processes and the visa interview occurs when the marriage is one year and eleven months old, but the alien is not admitted into the United States until after the second anniversary, the alien is not subject to the conditional residence requirements of INA 216.
INA 216 does not apply to the following:
- a special immigrant classification
- a refugee or asylee classification
- a preference classification other than second preference
- any other provision of the INA, or any other law, which allows dependents to accompany or follow to join a principal alien
Under the Immigration Marriage Fraud Amendments Act, USCIS is required to notify the alien of his/her duty to file the I-751. USCIS must notify the alien on two separate occasions: first, at the time an alien acquires conditional residence; second, approximately ninety days before the second anniversary of the date on which the alien obtained conditional permanent resident status. USCIS will notify the alien of the I-751 requirement at the last known address. However, failure by USCIS to notify the alien does not relieve the alien of his duty to file the I-751. If the alien fails to file the joint I-751 during the ninety days preceding the expiration of the two year green card, his/her status is automatically terminated.
A conditional permanent resident whose I-751 remains pending for an extended period of time may file the N-400 application to naturalize even if the I-751 has not been adjudicated.
If you are approaching the I-751 filing time, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the process. We have represented countless I-751 clients whether they were filing jointly or based on one of the waiver options such as good faith marriage or victim of domestic abuse.