Aliens and Nationality - 8 USC Section 1186a

01/03/05

Sec. 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 (g)(1) of this section) and an
alien son or daughter (as defined in subsection (g)(2) of this
section) 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 Attorney General shall provide for notice to
such a spouse, son, or daughter respecting the provisions of
this section and the requirements of subsection (c)(1) of this
section to have the conditional basis of such status removed.
(B) At time of required petition
In addition, the Attorney General 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 this section, of the requirements of subsections
(!1) (c)(1) of this section.
(C) Effect of failure to provide notice
The failure of the Attorney General 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) of this section, if the
Attorney General 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 Attorney General 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 Attorney General 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) of this section 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 Attorney General, during
the period described in subsection (d)(2) of this section, 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) of this section, and
(B) in accordance with subsection (d)(3) of this section, the
alien spouse and the petitioning spouse (if not deceased) must
appear for a personal interview before an officer or employee
of the Service respecting the facts and information described
in subsection (d)(1) of this section.
(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) of this section, 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 Attorney General 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 Attorney General 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) of this section and
alleged in the petition are true with respect to the qualifying
marriage.
(B) Removal of conditional basis if favorable determination
If the Attorney General determines that such facts and
information are true, the Attorney General 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 Attorney General determines that such facts and
information are not true, the Attorney General 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 Attorney General to establish,
by a preponderance of the evidence, that the facts and
information described in subsection (d)(1) of this section and
alleged in the petition are not true with respect to the
qualifying marriage.
(4) Hardship waiver
The Attorney General, in the Attorney General'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).
In determining extreme hardship, the Attorney General 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
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. 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.
(d) Details of petition and interview
(1) Contents of petition
Each petition under subsection (c)(1)(A) of this section 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) (!2) 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)
of this section, 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) of this section 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
Attorney General 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 Attorney General
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) of this section shall
be conducted within 90 days after the date of submitting a
petition under subsection (c)(1)(A) of this section and at a
local office of the Service, designated by the Attorney General,
which is convenient to the parties involved. The Attorney
General, in the Attorney General'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 of this chapter, 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) 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.

AMENDMENTS
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, Sec. 308(f)(1)(I),
substituted "admission" for "entry".
Subsec. (b)(2). Pub. L. 104-208, Sec. 308(e)(7), substituted
"removal" for "deportation" in heading and "remove" for "deport" in
text.
Subsec. (c)(2)(B). Pub. L. 104-208, Sec. 308(e)(7), substituted
"removal" for "deportation" in heading and text.
Subsec. (c)(3)(D). Pub. L. 104-208, Sec. 308(e)(7), substituted
"removal" for "deportation" in heading and "remove" for "deport" in
text.
Subsec. (c)(4)(A). Pub. L. 104-208, Sec. 308(e)(7), substituted
"removed" for "deported".
Subsec. (d)(1)(A)(i)(III). Pub. L. 104-208, Sec. 308(f)(1)(J),
substituted "admission" for "entry".
Subsec. (d)(2)(C). Pub. L. 104-208, Sec. 308(e)(7), substituted
"removal" for "deportation" wherever appearing in heading and text.
Subsec. (f). Pub. L. 104-208, Sec. 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, Sec. 7(a)(1), made technical amendment to
directory language of Pub. L. 99-639, Sec. 2(a), which enacted this
section.
Subsec. (c)(3)(A). Pub. L. 100-525, Sec. 7(a)(2), substituted "90
days" for "90-days".
EFFECTIVE DATE OF 2000 AMENDMENT
Amendment 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, Sec. 1103(d)] of Pub. L.
106-553, set out as a note under section 1101 of this title.
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment 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
Section 40702(b) of Pub. L. 103-322 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
Section 302(e)(8) of Pub. L. 102-232 provided that the amendment
made by that section is effective as if included in section 162(e)
of the Immigration Act of 1990, Pub. L. 101-649.
EFFECTIVE DATE OF 1990 AMENDMENT
Section 701(b) of Pub. L. 101-649 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 AMENDMENT
Amendment 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.

Last modified: June 14, 2006