
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 8USC1186a]

 
                     TITLE 8--ALIENS AND NATIONALITY
 
                 CHAPTER 12--IMMIGRATION AND NATIONALITY
 
                       SUBCHAPTER II--IMMIGRATION
 
Part II--Admission Qualifications for Aliens; Travel Control of Citizens 
                               and Aliens
 
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.
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    \1\ So in original. Probably should be ``subsection''.
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        (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) 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.

(June 27, 1952, ch. 477, title II, ch. 2, Sec. 216, as added Pub. L. 99-
639, Sec. 2(a), Nov. 10, 1986, 100 Stat. 3537; amended Pub. L. 100-525, 
Sec. 7(a), Oct. 24, 1988, 102 Stat. 2616; Pub. L. 101-649, title VII, 
Sec. 701(a), Nov. 29, 1990, 104 Stat. 5085; Pub. L. 102-232, title III, 
Sec. 302(e)(8)(B), Dec. 12, 1991, 105 Stat. 1746; Pub. L. 103-322, title 
IV, Sec. 40702(a), Sept. 13, 1994, 108 Stat. 1955; Pub. L. 104-208, div. 
C, title III, Sec. 308(d)(4)(E), (e)(7), (f)(1)(I), (J), Sept. 30, 1996, 
110 Stat. 3009-618, 3009-620, 3009-621; Pub. L. 106-553, Sec. 1(a)(2) 
[title XI, Sec. 1103(c)(2)], Dec. 21, 2000, 114 Stat. 2762, 2762A-145.)

                          Codification

    Another section 216 of act June 27, 1952, was renumbered section 218 
and is classified to section 1188 of this title.


                               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.

                  Section Referred to in Other Sections

    This section is referred to in sections 1186b, 1227, 1228, 1255, 
1367 of this title.
