When can you expect U.S. Citizenship and Immigration Services to require an interview of your conditional resident client in order to adjudicate his or her Form I-751 petition? The answer to that question is likely to be impacted by new guidance issued by USCIS on Nov. 30, 2018. Under the new guidance, applicable to both I-751 joint petitions and waivers filed on or after Dec. 10, 2018, a waiver of interview is appropriate where:

• The record contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into in order to evade U.S. immigration laws;
• For I-751 petitions received on or after Dec. 10, 2018, USCIS has previously interviewed the principal petitioner;
• There is no indication of fraud or misrepresentation in the I-751 or the supporting documentation; and
• There are no complex facts or issues that require an interview to resolve.

The revised guidance replaces the June 24, 2005 policy memorandum, “Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence.”  Under the 2005 guidance, adjudicators were advised that “interviews should be scheduled only when” (a) there is insufficient evidence of the bona fides of the marriage, and/or (b) in waiver cases, there is inconclusive evidence to establish eligibility for a waiver. In addition, the 2005 guidance encouraged the use of Requests for Evidence to obtain additional evidence for petition adjudication in lieu of transferring the petition to the local office for interview. In contrast, the 2018 revised guidance eliminates both the 2005 text that promotes I-751 adjudication without interview and the reference to using RFEs to resolve evidentiary issues.

Does the revised guidance make it more likely that your conditional resident client will be required to attend an interview as part of the I-751 adjudication? While it remains to be seen how USCIS will implement the revised guidance, at a minimum we can anticipate that those conditional residents who obtained their status through consular processing will be more likely to be scheduled for I-751 interviews.

The revised guidance on waiver of interviews replaces the prior text found in the Adjudicator Field Manual (AFM) at Chapter 25.1(g).