8 U.S. Code § 1186a - Conditional permanent resident status for certain alien spouses and sons and daughters
Notwithstanding any other provision of this chapter, analien spouse (as defined in subsection (h)(1)) and analien 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.
At the time analien spouse oralien son or daughter obtains permanentresident status on a conditional basis under paragraph (1), theSecretary 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.
In addition, theSecretary 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).
Anyalien whosepermanent 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 theSecretary of Homeland Security to establish, by a preponderance of the evidence, that a condition described in paragraph (1) is met.
If theSecretary of Homeland Security determines that such facts and information are true, theSecretary 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 permanentresidence.
If theSecretary of Homeland Security determines that such facts and information are not true, theSecretary of Homeland Security shall so notify the parties involved and, subject to subparagraph (D), shall terminate the permanentresident status of an alien spouseor an alien son or daughteras of the date of the determination.
Anyalien whosepermanent 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 theSecretary 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.
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 thealien’s obtaining the status of lawful admission forpermanent residence.
Such a petition may be considered if filed after such date, but only if thealien establishes to the satisfaction of theSecretary of Homeland Security good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A).
In the case of analien 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), theSecretary of Homeland Security may stay such removal proceedings against an alienpending the filing of the petition under subparagraph (B).
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 theDepartment of Homeland Security, designated by theSecretary of Homeland Security, which is convenient to the parties involved. TheSecretary 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.
For purposes of subchapter III, in the case of analien who is in theUnited States as a lawful permanentresident on a conditional basis under this section, the alienshall be considered to have been admitted as an alienlawfully admitted for permanent residence and to be in the United Statesas an alienlawfully admitted to the United Statesfor permanentresidence.
In the case of analien who haspermanent residencestatus on a conditional basis under this section, if, in order to obtain such status, the alienobtained a waiver under subsection (h) or (i) ofsection 1182 of this title of certain grounds of inadmissibility, such waiver terminates upon the termination of such permanentresidence status under this section.
The 90-day period described in subsection (d)(2)(A) shall be tolled during any period of time in which thealien spouse orpetitioning spouse is a member of the Armed Forces of the United Statesand 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 serviceat any time after the commencement of such 90-day period.
The 90-day period described in the first sentence of subsection (d)(3) shall be tolled during any period of time in which thealien spouse orpetitioning spouse is a member of the Armed Forces of the United Statesand serving abroad in an active-duty status in the Armed Forces, except that nothing in this paragraph shall be construed to prohibit theSecretary 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).
This chapter, referred to in subsec. (a)(1), was in the original, “this Act”, meaning act June 27, 1952, ch. 477,66 Stat. 163, known as theImmigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out undersection 1101 of this title and Tables.
Subsection (p) ofsection 1184 of this title, referred to in subsec. (d)(1)(A)(ii), was redesignated subsec. (r) of section 1184 byPub. L. 108–193, § 8(a)(3),Dec. 19, 2003,117 Stat. 2886.
Another section 216 of actJune 27, 1952, was renumbered section 218 and is classified tosection 1188 of this title.
2013—Subsec. (c)(4).Pub. L. 113–4, § 806(b)(2), which, in concluding provisions, directed the substitution of “Secretary of Homeland Security” for“Attorney General” in the first sentence and “Secretary” for“Attorney General” in the second to fourth sentences, could not be executed because of the prior amendment byPub. L. 112–58, § 1(b)(2)(B). See 2011 Amendment note below.
Pub. L. 113–4, § 806(b)(1), which directed the substitution of “TheSecretary of Homeland Security, in the Secretary’s” for “The Attorney General, in the Attorney General’s” in introductory provisions, was executed by making the substitution for “TheSecretary of Homeland Security, in the Attorney General’s”, to reflect the probable intent ofCongress and the prior amendment byPub. L. 112–58, § 1(b)(2)(B). See 2011 Amendment note below.
Subsec. (c)(4)(D).Pub. L. 113–4, § 806(a), added subpar. (D).
2011—Pub. L. 112–58, § 1(b)(2)(B), substituted “Secretary of Homeland Security” for“Attorney General” wherever appearing except in subsec. (g)(2).
Subsec. (a)(1).Pub. L. 112–58, § 1(b)(1), substituted “(h)(1))” for “(g)(1))” and “(h)(2))” for “(g)(2))”.
Subsec. (c)(1)(B).Pub. L. 112–58, § 1(b)(2)(C), substituted “Department of Homeland Security” for“Service”.
Subsec. (d)(3).Pub. L. 112–58, § 1(b)(2)(A), (C), substituted “Department of Homeland Security” for“Service” and “Secretary’s” for“Attorney General’s”.
Subsecs. (g), (h).Pub. L. 112–58, § 1(a), added subsec. (g) and redesignated former subsec. (g) as (h).
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) ofsection 1184 of this title” for “section 1154(a) or 1184(d) of this title”.
1996—Subsec. (b)(1)(A)(i).Pub. L. 104–208, § 308(f)(1)(I), substituted “admission” for “entry”.
Subsec. (b)(2).Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” in heading and “remove” for “deport” in text.
Subsec. (c)(2)(B).Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” in heading and text.
Subsec. (c)(3)(D).Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” in heading and “remove” for “deport” in text.
Subsec. (c)(4)(A).Pub. L. 104–208, § 308(e)(7), substituted “removed” for “deported”.
Subsec. (d)(1)(A)(i)(III).Pub. L. 104–208, § 308(f)(1)(J), substituted “admission” for “entry”.
Subsec. (d)(2)(C).Pub. L. 104–208, § 308(e)(7), substituted “removal” for “deportation” wherever appearing in heading and text.
Subsec. (f).Pub. L. 104–208, § 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 Generalshall 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 spousefor 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 Generalshall, by regulation, establish measures to protect the confidentiality of information concerning any abused alien spouseor child, including information regarding the whereabouts of such spouse or child.”
1988—Pub. L. 100–525, § 7(a)(1), made technical amendment to directory language ofPub. L. 99–639, § 2(a), which enacted this section.
Subsec. (c)(3)(A).Pub. L. 100–525, § 7(a)(2), substituted “90 days” for “90-days”.
Amendment byPub. L. 106–553 effectiveDec. 21, 2000, and applicable to alienwho is beneficiary of classification petition filed undersection 1154 of this title before, on, or afterDec. 21, 2000, see section 1(a)(2) [title XI, § 1103(d)] ofPub. L. 106–553, set out as a note undersection 1101 of this title.
Amendment byPub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days afterSept. 30, 1996, seesection 309 of Pub. L. 104–208, set out as a note undersection 1101 of this title.
Pub. L. 103–322, title IV, § 40702(b),Sept. 13, 1994,108 Stat. 1955, provided that:
Pub. L. 102–232, title III, § 302(e)(8),Dec. 12, 1991,105 Stat. 1746, provided that the amendment made by section 302(e)(8) is effective as if included in section 162(e) of theImmigration Act of 1990,Pub. L. 101–649.
Pub. L. 101–649, title VII, § 701(b),Nov. 29, 1990,104 Stat. 5086, provided that:
Amendment byPub. L. 100–525 effective as if included in enactment ofImmigration Marriage Fraud Amendments of 1986,Pub. L. 99–639, seesection 7(d) of Pub. L. 100–525, set out as a note undersection 1182 of this title.
For abolition of Immigration andNaturalization Service, transfer of functions, and treatment of related references, see note set out undersection 1551 of this title.