PART 1216—CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8 CFR part 2. Source: 53 FR 30018, Aug. 10, 1988, unless otherwise noted. Duplicated from part 216 at 68 FR 9837, Feb. 28, 2003. Editorial Note: Nomenclature changes to part 1216 appear at 68 FR 9846, Feb. 28, 2003, and at 68 FR 10353, Mar. 5, 2003. § 1216.1 Definition of conditional permanent resident. A conditional permanent resident [53 FR 30018, Aug. 10, 1988, as amended at 59 FR 26590, May 23, 1994; 61 FR 13079, Mar. 26, 1996] § 1216.2 Notification requirements. (a) When alien acquires status of conditional permanent resident. (b) When alien is required to apply for removal of the conditional basis of lawful permanent resident status. (c) Effect of failure to provide notification. [53 FR 30018, Aug. 10, 1988, as amended at 59 FR 26590, May 23, 1994] § 1216.3 Termination of conditional resident status. (a) During the two-year conditional period. (b) Determination of fraud after two years. [62 FR 10349, Mar. 6, 1997] § 1216.4 Joint petition to remove conditional basis of lawful permanent resident status for alien spouse. (a) Filing the petition General procedures. (2) Dependent children. (3) Jurisdiction. (4) Physical presence at time of filing. (5) Documentation. (i) Documentation showing joint ownership of property; (ii) Lease showing joint tenancy of a common residence; (iii) Documentation showing commingling of financial resources; (iv) Birth certificates of children born to the marriage; (v) Affidavits of third parties having knowledge of the bona fides of the marital relationship, or (vi) Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States. (6) Termination of status for failure to file petition. (b) Interview Authority to waive interview. (2) Location of interview. (3) Termination of status for failure to appear for interview. (c) Adjudication of petition. (1) The qualifying marriage was entered into in accordance with the laws of the place where the marriage took place; (2) The qualifying marriage has been judicially annulled or terminated, other than through the death of a spouse; (3) The qualifying marriage was entered into for the purpose of procuring permanent residence status for the alien; or (4) 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) in connection with the filing of the petition through which the alien obtained conditional permanent residence. If derogatory information is determined regarding any of these issues, the director shall offer the petitioners the opportunity to rebut such information. If the petitioners fail to overcome such derogatory information the director may deny the joint petition, terminate the alien's permanent residence, and issue a notice to appear to initiate removal proceedings. If derogatory information not relating to any of these issues is determined during the course of the interview, such information shall be forwarded to the investigations unit for appropriate action. If no unresolved derogatory information is determined relating to these issues, the petition shall be approved and the conditional basis of the alien's permanent residence status removed, regardless of any action taken or contemplated regarding other possible grounds for removal. (d) Decision Approval. (2) Denial. [53 FR 30018, Aug. 10, 1988, as amended at 54 FR 30369, July 20, 1989; 59 FR 26590, May 23, 1994; 62 FR 10349, Mar. 6, 1997; 63 FR 70315, Dec. 21, 1998; 85 FR 82794, Dec. 18, 2020] § 1216.5 Waiver of requirement to file joint petition to remove conditions by alien spouse. (a) General. (i) Deportation or removal from the United States would result in extreme hardship; (ii) The marriage upon which his or her status was based was entered into in good faith by the conditional resident alien, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition; or (iii) The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the alien spouse or child was battered by or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent. (2) A conditional resident who is in exclusion, deportation, or removal proceedings may apply for the waiver only until such time as there is a final order of exclusion, deportation or removal. (b) Fee. (c) Jurisdiction. (d) Interview. (e) Adjudication of waiver application Application based on claim of hardship. (2) Application for waiver based upon the alien's claim that the marriage was entered into in good faith. (i) Documentation relating to the degree to which the financial assets and liabilities of the parties were combined; (ii) Documentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence; (iii) Birth certificates of children born to the marriage; and (iv) Other evidence deemed pertinent by the director. (3) Application for waiver based on alien's claim of having been battered or subjected to extreme mental cruelty. (i) For the purpose of this chapter the phrase “was battered by or was the subject of extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor) or forced prostitution shall be considered acts of violence. (ii) A conditional resident or former conditional resident who has not departed the United States after termination of resident status may apply for the waiver. The conditional resident may apply for the waiver regardless of his or her present marital status. The conditional resident may still be residing with the citizen or permanent resident spouse, or may be divorced or separated. (iii) Evidence of physical abuse may include, but is not limited to, expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel. The Service must be satisfied with the credibility of the sources of documentation submitted in support of the application. (iv) The Service is not in a position to evaluate testimony regarding a claim of extreme mental cruelty provided by unlicensed or untrained individuals. Therefore, all waiver applications based upon claims of extreme mental cruelty must be supported by the evaluation of a professional recognized by the Service as an expert in the field. An evaluation which was obtained in the course of the divorce proceedings may be submitted if it was provided by a professional recognized by the Service as an expert in the field. (v) The evaluation must contain the professional's full name, professional address and license number. It must also identify the licensing, certifying, or registering authority. The Service retains the right to verify the professional's license. (vi) The Service's decision on extreme mental cruelty waivers will be based upon the evaluation of the recognized professional. The Service reserves the right to request additional evaluations from expert witnesses chosen by the Service. Requests for additional evaluations must be authorized by the Assistant Regional Commissioner for Adjudications. (vii) Licensed clinical social workers, psychologists, and psychiatrists are professionals recognized by the Service for the purpose of this section. A clinical social worker who is not licensed only because the state in which he or she practices does not provide for licensing will be considered a licensed professional recognized by the Service if he or she is included in the Register of Clinical Social Workers published by the National Association of Social Workers or is certified by the American Board of Examiners in Clinical Social Work. (viii) As directed by the statute, the information contained in the application and supporting documents shall not be released without a court order or the written consent of the applicant; or, in the case of a child, the written consent of the parent or legal guardian who filed the waiver application on the child's behalf. Information may be released only to the applicant, his or her authorized representative, an officer of the Department of Justice, or any federal or State law enforcement agency. Any information provided under this part may be used for the purposes of enforcement of the Act or in any criminal proceeding. (f) Decision. [53 FR 30018, Aug. 10, 1988, as amended at 56 FR 22637, May 16, 1991; 59 FR 26591, May 23, 1994; 62 FR 10350, Mar. 6, 1997; 63 FR 70315, Dec. 21, 1998; 85 FR 82794, Dec. 18, 2020] § 1216.6 Petition by entrepreneur to remove conditional basis of lawful permanent resident status. (a) Filing the petition General procedures. (2) Jurisdiction. (3) Physical presence at time of filing. (4) Documentation. (i) Evidence that a commercial enterprise was established by the alien. Such evidence may include, but is not limited to, Federal income tax returns; (ii) Evidence that the alien invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence; and (iii) Evidence that the alien sustained the actions described in paragraph (a)(4)(i) and (a)(4)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. Such evidence may include, but is not limited to, bank statements, invoices, receipts, contracts, business licenses, Federal or State income tax returns, and Federal or State quarterly tax statements. (iv) Evidence that the alien created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees. In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), the alien entrepreneur must submit evidence that the commercial enterprise maintained the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident. Such evidence may include payroll records, relevant tax documents, and Forms I-9. (5) Termination of status for failure to file petition. (6) Death of entrepreneur and effect on spouse and children. (b) Petition review Authority to waive interview. (2) Location of interview. (3) Termination of status for failure to appear for interview. (c) Adjudication of petition. (i) A commercial enterprise was established by the alien; (ii) The alien invested or was actively in the process of investing the requisite capital; and (iii) The alien sustained the actions described in paragraphs (c)(1)(i) and (c)(1)(ii) of this section throughout the period of the alien's residence in the United States. The alien will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence. (iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a “troubled business” as defined in 8 CFR 204.6(j)(4)(ii), the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years. (2) If derogatory information is determined regarding any of these issues or it becomes known to the government that the entrepreneur obtained his or her investment funds through other than legal means (such as through the sale of illegal drugs), the director shall offer the alien entrepreneur the opportunity to rebut such information. If the alien entrepreneur fails to overcome such derogatory information or evidence the investment funds were obtained through other than legal means, the director may deny the petition, terminate the alien's permanent resident status, and issue an order to show cause. If derogatory information not relating to any of these issues is determined during the course of the interview, such information shall be forwarded to the investigations unit for appropriate action. If no unresolved derogatory information is determined relating to these issues, the petition shall be approved and the conditional basis of the alien's permanent resident status removed, regardless of any action taken or contemplated regarding other possible grounds for deportation. (d) Decision Approval. (2) Denial. [59 FR 26591, May 23, 1994, as amended at 63 FR 70315, Dec. 21, 1998; 85 FR 82794, Dec. 18, 2020]