USCIS has issued a new policy memorandum that provides guidance to USCIS officers on waiving interviews for I-751 cases. Under the Immigration and Marriage Fraud Amendments of 1986, immigrants who have been married for less than two years to their petitioning spouse at the time their case is approved are granted "conditional green cards." To remove these conditions, immigrants must file the I-751 petition, normally together with their spouses, but in some cases, alone with a waiver request. Over the last two years, we have seen an uptick in I-751 cases being scheduled for interviews, even for cases which are clearly approvable and devoid of any issues-which therefore makes the timing of this new guidance intriguing. In any case, the new policy is overall positive and may help to expedite the processing of I-751 cases (which are currently taking close to 18 months and in some cases, longer) by allowing officers to dispense with interviews under certain circumstances.
As stated in the memorandum, the purpose of interviewing conditional residents is to allow USCIS the chance to verify information as well explore new information that may be relevant to the adjudication of the case. However, not every case may necessarily warrant an in-person interview. Effective December 10, 2018, USCIS may waive or dispense with interviews under the following circumstances:
· A decision can be rendered based on the documentation in the record because there is sufficient evidence that the marriage is genuine and not entered into to evade the immigration laws;
· For Form I-751 cases received on/after December 10, 2018, USCIS has previously interviewed the I-751 principal petitioner (for example, for an I-485 adjustment of status or I-130 Petition for Alien Relative);
· There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
· There are no complex facts or issues that require an interview to resolve questions or concerns.
The guidance further notes that these guidelines will be applied regardless of whether the I-751 is a joint petition or self-petition/waiver. While statistically speaking, waivers are probably scheduled for interviews more frequently than joint petitions, this formalized guidance may allow more meritorious self-petitions to be approved without undergoing the vagaries that sometimes characterize interviews. The fact of the matter is that while the purpose of an interview is well intentioned, a lot of things can go terribly wrong. Scheduling an interview can delay adjudication of a case much longer than necessary and possibly lead to marital tension by the time the couple is summoned to appear. Furthermore, people who are expected to appear for a formal hearing are invariably and understandably nervous, especially when the impression is that USCIS only schedules interviews for "problem cases"; this nervousness can often be misinterpreted by an officer, especially if an individual appears flustered, confused or flat-out intimidated by an officer. Clearly, a lot of false positives can be avoided through judicious use of interviews, especially given that many couples will have already been interviewed and vetted the first time around for the conditional green card. Hopefully with time, we will see the practical effects of the memo's implementation and eventually shorter adjudication times.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.