January 29, 2010

Conditional Permanent Resident whose Petitioning Spouse has Died During Two-year Conditional Period is Excused of Joint Filing and Is Not Required to File Hardship Waiver

On January 25, 2010, the Board of Immigration Appeals (BIA) issued a decision in a case of first impression regarding the removal of conditions by a conditional permanent resident whose spouse has died in the two-year conditional period. In the case Matter of Rose, 25 I&N Dec. 181 (BIA 2010), the BIA found that the death of the petitioning spouse during the two-year conditional  period excused the general requirement that a petition to remove the conditional basis of status must be filed and interviewed jointly and that a separate waiver under INA 216(c)(4) is not required if the surviving spouse timely files the Form I-751 petition requesting removal of conditions on status and appears for a personal interview.

Conditional permanent resident status is granted to beneficiaries (includes the beneficiary spouse and their dependent children) of a marriage-based immigrant petition who at the time of being granted lawful permanent resident status have been married for less than two years. The conditional permanent resident and his/her spouse must thereafter, pursuant to INA 216(c)(1), jointly file a Form I-751 application to remove the conditional basis of status during the 90-day period preceding the second anniversary of the grant of conditional resident status. In the I-751 application, evidence must be included to prove that the marriage was bona-fide and was not entered into for the purpose of evading immigration laws. As clarified by the BIA in Matter of Rose, this joint requirement is excused only in the case where the petitioning spouse has passed away during the two-year conditional period. In all other cases where a joint filing cannot be made, for example due to divorce, separation, petitioning spouse's deportation or unwillingness to jointly file, the conditional permanent resident must file for a hardship waiver under the provisions of INA 216(c)(4).