§1186a — Title 8 Aliens and Nationality | U.S. Code

Summary

People who get lawful permanent resident status because they are the spouse, son, or daughter of a U.S. citizen or permanent resident are given that status on a conditional basis when they first get it. The Department of Homeland Security (DHS) must give notice about how to remove the conditions and try to remind the person near the 90-day window described below. Before the second anniversary of getting conditional status, DHS can end that status if it finds the marriage was entered to cheat the immigration system, the marriage was annulled or ended (not by death), or money was paid to get the petition filed (other than a lawyer’s fee). If DHS ends the status, the person can ask for a review in a removal (deportation) case, and DHS must prove its claim by a “more likely than not” standard. Failing to give the required notice does not stop DHS from enforcing these rules. To remove the conditions, the alien and the petitioning spouse (unless dead) must file a joint petition during the 90-day period before the second anniversary of the alien’s conditional residence, give certain facts about their marriage and living arrangements under penalty of perjury, and normally attend an interview within 90 days after filing. If they file, appear, and DHS finds the facts true, DHS will remove the conditions effective on the second anniversary. If DHS finds the facts false, DHS will notify them and may terminate the status; the alien can seek review and DHS must prove its claim by a “more likely than not” standard. If no petition is filed or the couple misses the interview without good cause, the alien must prove in removal proceedings that they followed the rules. DHS may, in its discretion, remove conditions even if the rules were not met when there is extreme hardship, the marriage was entered in good faith but ended (not by death) and the alien was not at fault, the alien or child was battered or subjected to extreme cruelty, or in certain fiancé situations with abuse. The 90-day filing and interview time limits pause while the alien or petitioning spouse is serving abroad on active U.S. military duty; they may also choose to file during that service. If the alien got a waiver of certain grounds of inadmissibility to get the conditional status, that waiver ends if the conditional status is terminated. Definitions: “alien spouse” = an immigrant spouse; “alien son or daughter” = an immigrant child by virtue of the qualifying marriage; “qualifying marriage” = the marriage used to get the status; “petitioning spouse” = the other spouse who filed for the alien.

Title 8, §1186a

Aliens and Nationality — Source: USLM XML via OLRC

(a)(1)Notwithstanding any other provision of this chapter, an alien spouse (as defined in subsection (h)(1)) and an alien son or daughter (as defined in subsection (h)(2)) shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section.

(2)(A)At the time an alien spouse or alien son or daughter obtains permanent resident status on a conditional basis under paragraph (1), the Secretary of Homeland Security shall provide for notice to such a spouse, son, or daughter respecting the provisions of this section and the requirements of subsection (c)(1) to have the conditional basis of such status removed.

(B)In addition, the Secretary of Homeland Security shall attempt to provide notice to such a spouse, son, or daughter, at or about the beginning of the 90-day period described in subsection (d)(2)(A), of the requirements of subsection 11 So in original. Probably should be “subsection”. (c)(1).

(C)The failure of the Secretary of Homeland Security to provide a notice under this paragraph shall not affect the enforcement of the provisions of this section with respect to such a spouse, son, or daughter.

(b)(1)In the case of an alien with permanent resident status on a conditional basis under subsection (a), if the Secretary of Homeland Security determines, before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence, that—

(A)the qualifying marriage—

(i)was entered into for the purpose of procuring an alien’s admission as an immigrant, or

(ii)has been judicially annulled or terminated, other than through the death of a spouse; or

(B)a fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 1154(a) of this title or subsection (d) or (p) of section 1184 of this title with respect to the alien;

(2)Any alien whose permanent resident status is terminated under paragraph (1) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.

(c)(1)In order for the conditional basis established under subsection (a) for an alien spouse or an alien son or daughter to be removed—

(A)the alien spouse and the petitioning spouse (if not deceased) jointly must submit to the Secretary of Homeland Security, during the period described in subsection (d)(2), a petition which requests the removal of such conditional basis and which states, under penalty of perjury, the facts and information described in subsection (d)(1), and

(B)in accordance with subsection (d)(3), the alien spouse and the petitioning spouse (if not deceased) must appear for a personal interview before an officer or employee of the Department of Homeland Security respecting the facts and information described in subsection (d)(1).

(2)(A)In the case of an alien with permanent resident status on a conditional basis under subsection (a), if—

(i)no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or

(ii)unless there is good cause shown, the alien spouse and petitioning spouse fail to appear at the interview described in paragraph (1)(B),

(B)In any removal proceeding with respect to an alien whose permanent resident status is terminated under subparagraph (A), the burden of proof shall be on the alien to establish compliance with the conditions of paragraphs (1)(A) and (1)(B).

(3)(A)If—

(i)a petition is filed in accordance with the provisions of paragraph (1)(A), and

(ii)the alien spouse and petitioning spouse appear at the interview described in paragraph (1)(B),

(B)If the Secretary of Homeland Security determines that such facts and information are true, the Secretary of Homeland Security shall so notify the parties involved and shall remove the conditional basis of the parties effective as of the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence.

(C)If the Secretary of Homeland Security determines that such facts and information are not true, the Secretary of Homeland Security shall so notify the parties involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien spouse or an alien son or daughter as of the date of the determination.

(D)Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the qualifying marriage.

(4)The Secretary of Homeland Security, in the Secretary’s discretion, may remove the conditional basis of the permanent resident status for an alien who fails to meet the requirements of paragraph (1) if the alien demonstrates that—

(A)extreme hardship would result if such alien is removed;

(B)the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1); or

(C)the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the requirements of paragraph (1); or

(D)the alien meets the requirements under section 1154(a)(1)(A)(iii)(II)(aa)(BB) of this title and following the marriage ceremony was battered by or subject to extreme cruelty perpetrated by the alien’s intended spouse and was not at fault in failing to meet the requirements of paragraph (1).

(d)(1)Each petition under subsection (c)(1)(A) shall contain the following facts and information:

(A)The facts are that—

(i)the qualifying marriage—

(I)was entered into in accordance with the laws of the place where the marriage took place,

(II)has not been judicially annulled or terminated, other than through the death of a spouse, and

(III)was not entered into for the purpose of procuring an alien’s admission as an immigrant; and

(ii)no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 1154(a) of this title or subsection (d) or (p) 22 See References in Text note below. of section 1184 of this title with respect to the alien spouse or alien son or daughter.

(B)The information is a statement of—

(i)the actual residence of each party to the qualifying marriage since the date the alien spouse obtained permanent resident status on a conditional basis under subsection (a), and

(ii)the place of employment (if any) of each such party since such date, and the name of the employer of such party.

(2)(A)Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) must be filed during the 90-day period before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence.

(B)Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of the Secretary of Homeland Security good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A).

(C)In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Secretary of Homeland Security may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B).

(3)The interview under subsection (c)(1)(B) shall be conducted within 90 days after the date of submitting a petition under subsection (c)(1)(A) and at a local office of the Department of Homeland Security, designated by the Secretary of Homeland Security, which is convenient to the parties involved. The Secretary of Homeland Security, in the Secretary’s discretion, may waive the deadline for such an interview or the requirement for such an interview in such cases as may be appropriate.

(e)For purposes of subchapter III, in the case of an alien who is in the United States as a lawful permanent resident on a conditional basis under this section, the alien shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.

(f)In the case of an alien who has permanent residence status on a conditional basis under this section, if, in order to obtain such status, the alien obtained a waiver under subsection (h) or (i) of section 1182 of this title of certain grounds of inadmissibility, such waiver terminates upon the termination of such permanent residence status under this section.

(g)(1)The 90-day period described in subsection (d)(2)(A) shall be tolled during any period of time in which the alien spouse or petitioning spouse is a member of the Armed Forces of the United States and serving abroad in an active-duty status in the Armed Forces, except that, at the option of the petitioners, the petition may be filed during such active-duty service at any time after the commencement of such 90-day period.

(2)The 90-day period described in the first sentence of subsection (d)(3) shall be tolled during any period of time in which the alien spouse or petitioning spouse is a member of the Armed Forces of the United States and serving abroad in an active-duty status in the Armed Forces, except that nothing in this paragraph shall be construed to prohibit the Secretary of Homeland Security from waiving the requirement for an interview under subsection (c)(1)(B) pursuant to the Secretary’s authority under the second sentence of subsection (d)(3).

(h)In this section:

(1)The term “alien spouse” means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise)—

(A)as an immediate relative (described in section 1151(b) of this title) as the spouse of a citizen of the United States,

(B)under section 1184(d) of this title as the fiancee or fiance of a citizen of the United States, or

(C)under section 1153(a)(2) of this title as the spouse of an alien lawfully admitted for permanent residence,

(2)The term “alien son or daughter” means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage.

(3)The term “qualifying marriage” means the marriage described to in paragraph (1).

(4)The term “petitioning spouse” means the spouse of a qualifying marriage, other than the alien.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This chapter, referred to in subsec. (a)(1), was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 1101 of this title and Tables. Subsection (p) of section 1184 of this title, referred to in subsec. (d)(1)(A)(ii), was redesignated subsec. (r) of section 1184 by Pub. L. 108–193, § 8(a)(3), Dec. 19, 2003, 117 Stat. 2886. Codification Another section 216 of act June 27, 1952, was renumbered section 218 and is classified to section 1188 of this title.

Amendments

2013—Subsec. (c)(4). Pub. L. 113–4, § 806(b)(2), which, in concluding provisions, directed the substitution of “Secretary of Homeland Security” for “Attorney General” in the first sentence and “Secretary” for “Attorney General” in the second to fourth sentences, could not be executed because of the prior amendment by Pub. L. 112–58, § 1(b)(2)(B). See 2011 Amendment note below. Pub. L. 113–4, § 806(b)(1), which directed the substitution of “The Secretary of Homeland Security, in the Secretary’s” for “The Attorney General, in the Attorney General’s” in introductory provisions, was executed by making the substitution for “The Secretary of Homeland Security, in the Attorney General’s”, to reflect the probable intent of Congress and the prior amendment by Pub. L. 112–58, § 1(b)(2)(B). See 2011 Amendment note below. Subsec. (c)(4)(D). Pub. L. 113–4, § 806(a), added subpar. (D). 2011—Pub. L. 112–58, § 1(b)(2)(B), substituted “Secretary of Homeland Security” for “Attorney General” wherever appearing except in subsec. (g)(2). Subsec. (a)(1). Pub. L. 112–58, § 1(b)(1), substituted “(h)(1))” for “(g)(1))” and “(h)(2))” for “(g)(2))”. Subsec. (c)(1)(B). Pub. L. 112–58, § 1(b)(2)(C), substituted “Department of Homeland Security” for “Service”. Subsec. (d)(3). Pub. L. 112–58, § 1(b)(2)(A), (C), substituted “Department of Homeland Security” for “Service” and “Secretary’s” for “Attorney General’s”. Subsecs. (g), (h). Pub. L. 112–58, § 1(a), added subsec. (g) and redesignated former subsec. (g) as (h). 2000—Subsecs. (b)(1)(B), (d)(1)(A)(ii). Pub. L. 106–553 substituted “section 1154(a) of this title or subsection (d) or (p) of section 1184 of this title” for “section 1154(a) or 1184(d) of this title”. 1996—Subsec. (b)(1)(A)(i). Pub. L. 104–208, § 308(f)(1)(I), substituted “admission” for “entry”. Subsec. (b)(2). Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” in heading and “remove” for “deport” in text. Subsec. (c)(2)(B). Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” in heading and text. Subsec. (c)(3)(D). Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” in heading and “remove” for “deport” in text. Subsec. (c)(4)(A). Pub. L. 104–208, § 308(e)(7), substituted “removed” for “deported”. Subsec. (d)(1)(A)(i)(III). Pub. L. 104–208, § 308(f)(1)(J), substituted “admission” for “entry”. Subsec. (d)(2)(C). Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” wherever appearing in heading and text. Subsec. (f). Pub. L. 104–208, § 308(d)(4)(E), substituted “inadmissibility” for “exclusion”. 1994—Subsec. (c)(4). Pub. L. 103–322 inserted after second sentence “In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.” 1991—Subsec. (g)(1). Pub. L. 102–232 substituted “section 1153(d)” for “section 1153(a)(8)” in closing provisions. 1990—Subsec. (c)(4). Pub. L. 101–649 struck out “or” at end of subpar. (A), struck out “by the alien spouse for good cause” after “death of the spouse)” and substituted “, or” for period at end of subpar. (B), added subpar. (C), and inserted at end “The Attorney General shall, by regulation, establish measures to protect the confidentiality of information concerning any abused alien spouse or child, including information regarding the whereabouts of such spouse or child.” 1988—Pub. L. 100–525, § 7(a)(1), made technical amendment to directory language of Pub. L. 99–639, § 2(a), which enacted this section. Subsec. (c)(3)(A). Pub. L. 100–525, § 7(a)(2), substituted “90 days” for “90-days”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2000 AmendmentAmendment by Pub. L. 106–553 effective Dec. 21, 2000, and applicable to alien who is beneficiary of classification petition filed under section 1154 of this title before, on, or after Dec. 21, 2000, see section 1(a)(2) [title XI, § 1103(d)] of Pub. L. 106–553, set out as a note under section 1101 of this title.

Effective Date

of 1996 AmendmentAmendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.

Effective Date

of 1994 Amendment Pub. L. 103–322, title IV, § 40702(b), Sept. 13, 1994, 108 Stat. 1955, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of enactment of this Act [Sept. 13, 1994] and shall apply to applications made before, on, or after such date.”

Effective Date

of 1991 Amendment Pub. L. 102–232, title III, § 302(e)(8), Dec. 12, 1991, 105 Stat. 1746, provided that the amendment made by section 302(e)(8) is effective as if included in section 162(e) of the Immigration Act of 1990, Pub. L. 101–649.

Effective Date

of 1990 Amendment Pub. L. 101–649, title VII, § 701(b), Nov. 29, 1990, 104 Stat. 5086, provided that: “The

Amendments

made by subsection (a) [amending this section] shall apply with respect to marriages entered into before, on, or after the date of the enactment of this Act [Nov. 29, 1990].”

Effective Date

of 1988 AmendmentAmendment by Pub. L. 100–525 effective as if included in enactment of Immigration Marriage Fraud

Amendments

of 1986, Pub. L. 99–639, see section 7(d) of Pub. L. 100–525, set out as a note under section 1182 of this title. Abolition of Immigration and Naturalization Service and

Transfer of Functions

For abolition of Immigration and Naturalization Service,

Transfer of Functions

, and treatment of related references, see note set out under section 1551 of this title.

§1186a Conditional permanent resident status for certain alien spouses and sons and daughters

Summary

Title 8, §1186a

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Effective Date

Effective Date

Amendments

Effective Date

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Transfer of Functions

Transfer of Functions

Citations & Metadata