The Biden administration announced a new policy Thursday through the U.S. Citizenship and Immigration Services (USCIS).
The policy is intended to allow immigration officials to ease one aspect of the various procedures involved, particularly for certain family immigrants with conditional green cards.
The newly announced policy, specifically gives USCIS officials the discretion to waive interviews with family members of U.S. citizens and conditional permanent resident green card holders who have filed Form I-751, a petition waiving residency requirements.
This article addresses that issue. If you read it all the way through, you will understand the details of how this U.S. administration policy is being implemented.
What is the impact of this policy on married couples?
Couples who have been married for less than two years before green card applications based on marriage to a U.S. citizen or permanent resident are approved will receive conditional permanent resident (CPR) status instead of lawful permanent resident (LPR) status.
Conditional green cards granted to CPR are valid for two years, while green cards granted to LPR are valid for ten years. After two years, the CPR must apply to remove the residency requirement and obtain LPR status.
The Immigration and Nationality Act (INA) requires conditional residents to attend an interview when USCIS rules (or decides) on the couple’s application to waive the condition.
However, the INA also gives USCIS the authority to waive the I-751 interview. This authority had been significantly curtailed in November 2018 when the Trump Administration issued guidance prohibiting USCIS officials from using their independent judgment to waive condition removal interviews.
Is the new policy retroactive?
The updated policy repeals the 2018 guidance, restoring USCIS officials’ discretion to waive interviews for decisions on requests to remove certain conditions, ending mandatory consular processing of all RPCs for green cards obtained from outside the United States.
Under the new guidance, RPCs dealing with consulates rather than adjusting their status in the U.S. may have their interviews cancelled by USCIS.
From the end of FY 2018 (i.e., October 2018) to the end of September 2021, the increase in mandatory I-751 interviews nearly tripled the increase in the USCIS backlog, when pending I-751 applications reached 323,803. The I-751 backlog currently stands at 252,775 in 2021, according to the latest data as of December 31.
What does the new directive issued by USCIS mean in practical terms?
U.S. Citizenship and Immigration Services (USCIS) announced that, as part of a policy update, the agency may waive the interview requirement that spouses must receive at the end of their conditional green card period.
For example, if an Indian national marries a U.S. citizen or green card holder, he or she will obtain a “conditional” green card valid for two years. Obtaining such a green card is inherently difficult because of the forms and interviews at the U.S. Consulate in India.
But it’s not over yet, because once you arrive in the United States, it is again mandatory to fill out forms and have mandatory interviews. It is this last requirement that is now being relaxed in an updated policy.
The U.S. spouse of a conditional green card obtained through the consular process must file Form I-751 to remove the “condition,” or in other words, obtain full permanent resident status. This form must be filed ninety days prior to the expiration of the two-year period.
The process also involves a mandatory interview with a U.S. Citizenship and Immigration Services officer after the application is filed, under a revised policy mandated by the Trump administration in November 2018.
As part of the policy update, this requirement has been waived. USCIS may waive the requirement for an interview if an immigration officer determines that there is sufficient evidence to support the veracity of the marriage and that there are no signs of fraud or misrepresentation indicated in the supporting documentation, there are no outstanding complex facts or issues, and there is also no criminal history.
What are the reasons for this policy change?
The previous policy requiring mandatory conditional interviews for permanent residents, has not proven to be an effective use of USCIS human resources. As a result, USCIS considered updating the policy to take a risk-based approach to waiving interviews for conditional permanent residents (CPRs) who have filed petitions to remove conditions from their residency status.
According to USCIS, “A strategic risk-based approach to the CPR interview process will increase efficiency, resulting in shorter processing times, better use of agency staff resources, and help reduce the burden of pending work, while maintaining procedures to identify fraud and protect national security.” Director Ur Jaddou.
This initiative aligns with the agency’s priorities to reduce barriers in the immigration system, removing undue burden on those seeking benefits and effectively responding to stakeholder input and public concerns,” she added.
The Herman Immigration Law Group, informs that the increase in mandatory I-751 interviews had nearly tripled the USCIS backlog. The backlog of pending applications reached 3,23,803 between October 2018 and September 2021. The most recent data as of December 31, 2021 shows the current backlog of pending cases at 2,52,775.
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