8 U.S.C. § 1186a : US Code - Section 1186A: Conditional permanent resident status for certain alien spouses and sons and daughters

Search 8 U.S.C. § 1186a : US Code - Section 1186A: Conditional permanent resident status for certain alien spouses and sons and daughters

    (a) In general
      (1) Conditional basis for status
        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) Notice of requirements
        (A) At time of obtaining permanent residence
          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) At time of required petition
          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 subsections (!1)
        (c)(1).

        (C) Effect of failure to provide notice
          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) Termination of status if finding that qualifying marriage
      improper
      (1) In general
        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;

      the Secretary of Homeland Security shall so notify the parties
      involved and, subject to paragraph (2), shall terminate the
      permanent resident status of the alien (or aliens) involved as of
      the date of the determination.
      (2) Hearing in removal proceeding
        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) Requirements of timely petition and interview for removal of
      condition
      (1) In general
        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) Termination of permanent resident status for failure to file
        petition or have personal interview
        (A) In general
          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),

        the Secretary of Homeland Security shall terminate the
        permanent resident status of the alien as of the second
        anniversary of the alien's lawful admission for permanent
        residence.
        (B) Hearing in removal proceeding
          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) Determination after petition and interview
        (A) In general
          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),

        the Secretary of Homeland Security shall make a determination,
        within 90 days of the date of the interview, as to whether the
        facts and information described in subsection (d)(1) and
        alleged in the petition are true with respect to the qualifying
        marriage.
        (B) Removal of conditional basis if favorable determination
          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) Termination if adverse determination
          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) Hearing in removal proceeding
          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) Hardship waiver
        The Secretary of Homeland Security, in the Attorney General's
      (!2) 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).

      In determining extreme hardship, the Secretary of Homeland
      Security shall consider circumstances occurring only during the
      period that the alien was admitted for permanent residence on a
      conditional basis. In acting on applications under this
      paragraph, the Secretary of Homeland Security 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 Secretary of
      Homeland Security. The Secretary of Homeland Security 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.
    (d) Details of petition and interview
      (1) Contents of petition
        Each petition under subsection (c)(1)(A) shall contain the
      following facts and information:
        (A) Statement of proper marriage and petitioning process
          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) (!3) of section 1184 of this title with respect to
          the alien spouse or alien son or daughter.

        (B) Statement of additional information
          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) Period for filing petition
        (A) 90-day period before second anniversary
          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) Date petitions for good cause
          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) Filing of petitions during removal
          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) Personal interview
        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) Treatment of period for purposes of naturalization
      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) Treatment of certain waivers
      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) Service in Armed Forces
      (1) Filing petition
        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) Personal interview
        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) Definitions
      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,

      by virtue of a marriage which was entered into less than 24
      months before the date the alien obtains such status by virtue of
      such marriage, but does not include such an alien who only
      obtains such status as a result of section 1153(d) of this title.
        (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.