USCIS Issues Guidance Highlighting Discretionary Power to Waive In-Person Interviews for I-751 Applicants, U.S. Embassy Havana to Process IR-5 Visas in May of 2022

couple-g86465ecab_1920USCIS Updates Policy Guidance Highlighting Discretionary Power to Waive In-Person Interviews for I-751 Applicants

On April 7, 2022, the United States Citizenship, and Immigration Services (USCIS) updated its Policy Manual on the interview waiver criteria for family-based conditional permanent residents filing to remove the conditions on permanent residence on Form I-751 Removal of Conditions.

Under the law, those who attained their permanent resident status (green card) based on a marriage that was less than 2 years old at the time of approval, receive a conditional green card, also known as “conditional permanent residency.”

This conditional green card is issued for a 2-year period. Prior to the expiration of the 2-year green card, the applicant must file Form I-751 to remove their conditions on permanent residence within the 90-day window before it expires.

The Immigration and Nationality Act stipulates that a conditional permanent resident must appear for an in-person interview as part of the I-751 Removal of Conditions adjudication process, so that the immigration officer can verify the accuracy of the information included in the petition and determine whether the conditions on permanent residence should be removed.

The Act also carves out discretionary powers that allow USCIS officers to authorize waiver of the in-person interview.

The April 2022 updated Policy Guidance clarifies that USCIS officers may consider waiving an interview, if, generally, the applicant meets all eligibility requirements for removal of conditions, and the record contains sufficient evidence for approval, and there is no indication of fraud, misrepresentation, criminal bars, or such factors that would require an interview.

The Guidance also eliminates automatic referrals in cases where a conditional permanent resident obtained status by way of Consular processing.

The language of the pertinent section indicates the following:

Volume 6: Immigrants, Part I, Family-Based Conditional Permanent Residents, Chapter 3, Petition to Remove Conditions on Residence [6 USCIS-PM I.3]

CPRs who file a Form I-751 must appear for an interview at a USCIS field office, unless USCIS waives the interview requirement. USCIS officers may consider waiving the interview in cases where:

  • The officer considers they can make a decision on the petition based on the record because the record contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
  • There is sufficient evidence in the record of the CPR’s eligibility for waiver of the joint filing requirement, if applicable;
  • There is no indication of fraud or misrepresentation on the Form I-751, in the supporting documentation, or elsewhere in the record;
  • There are no complex facts or issues that require an interview or sworn statement to resolve questions or concerns; and
  • There are no criminal bars rendering the CPR removable.

When determining whether to waive an interview, the considerations listed above apply regardless of whether the Form I-751 is filed as a joint petition, individual filing request, or a waiver. For a joint petition, the statute requires USCIS to interview both the CPR and petitioning spouse.[3] If the CPR is filing an individual filing request or waiver, only the CPR must appear for the interview.[4]

If the required party or parties fail to appear for the interview, USCIS denies the Form I-751, terminates the CPR’s status, and initiates removal proceedings, unless the CPR establishes good cause for the failure to appear and USCIS reschedules the interview.[5] USCIS determines whether there is good cause on a case-by-case basis.

To read the complete update please click here.

Limited Resumption of Immigrant Visa Processing in Havana

In terms of Consular post news, on April 6, 2022, the Department of State (DOS) announced that starting May of this year, the U.S. Embassy in Havana, Cuba, will resume immigrant visa services on a limited basis for applicants in the IR-5 category (Parent of a U.S. Citizen).

In the meantime, DOS has said that the agency is working to expand services at the U.S. Embassy Georgetown in Guyana, which will remain the primary processing location for all other Cuban immigrant visa applicants.

According to DOS, IR-5 applicants who are notified after April 1, 2022, that their case is ready to be processed will have their interview scheduled at the U.S. Embassy in Havana, not the U.S. Embassy in Georgetown.

IR-5 applicants who were notified prior to April 1, 2022, that their case was ready to be processed will be interviewed at the U.S. Embassy in Georgetown.

Unfortunately, neither the U.S. Embassy in Havana, Cuba nor the U.S. Embassy in Georgetown, Guyana will be able to assist with requests to transfer cases due to resource limitations.

DOS has said that it will continue to evaluate, as conditions permit, further expansion of visa processing services in Havana.

The U.S. Embassy in Havana will continue to provide American Citizens Services and limited emergency nonimmigrant visa processing.

For more information please click here.

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