Former Conditional Residents Will Be Able To Readjust Without The Court Proceedings
22 November 2019Author: New York Immigration attorney Alena Shautsova
When a person receives the status of a permanent resident before his or her marriage is more than 2 years old, or if a person is an investor, he or she usually will become a conditional resident, with the residency given for 2 years. That condition from the residency will have to be removed by filing a special petition (I 751 for married couples) within 90 days of the second anniversary of the green card status. Quite often, however, couples fall apart before such a petition is either filed or decided. A person whose marriage was entered in good faith may still proceed on his or her own, by submitting I-751 and requesting a waiver from the joint filing. In such a case, the filing deadline for the I751 petition will not apply. Often, however, if a person missed their deadline to submit I -751, he or she would receive a letter from USCIS stating that their conditional resident status was terminated. And here is where the confusion lasted for about 30 years...
Back in 1991 Board of Immigration Appeals in the Matter of Stockwell issued a decision that when a conditional resident’s status is terminated by USCIS, the person can re-adjust their status if a new petition is granted for them and they can adjust otherwise. USCIS, however, did not follow it as such, relying on the following logic: the conditional residence is still a residence, and under the law, only a judge may terminate one’s permanent resident status, and that section 245(d) prohibits adjustment for those who hold conditional resident status. With that in mind, if a person who received a letter that their conditional residence was terminated for failure to submit I-751, would try to get a new green card based on a new marriage, USCIS would deny or administratively close new I485, arguing that only a judge could terminate the previous residency status… In such a case, a person had no choice but to pursue I-751 on their own, asking USCIS for a waiver of the joint filing or seek to be placed in removal proceedings where his/her status would be first terminated by the judge and then the judge would grant a new green card based on new marriage.
Finally, just recently, USCIS decided to change its long-lasting position and stated that from now on:
An alien with CPR status is generally ineligible to adjust their status on a new basis under the provisions of section 245(a) of the Immigration and Nationality Act. However, USCIS may adjust an alien’s status if their CPR status has been terminated and:
- The alien has a new basis for adjustment of status;
- The alien is otherwise eligible to adjust status; and
- USCIS has jurisdiction over the adjustment of status application.
Time spent in the prior CPR status does not count toward the residency requirements for naturalization.
This guidance applies to the adjustment of status applications filed with USCIS on or after Nov. 21, 2019.
It means that from now on, if a person’s conditional residence status was terminated, and the person re-married to a US citizen and has an approved I 130 or, has I -360 form, etc. the person will be able to get a new green card or permanent resident status.
If you need a consultation regarding the adjustment of status issues, please call us at 917-885-2261.