Termination of Conditional Residence Clarified
U.S. Citizenship and Immigration Services (USCIS) recently amended its Policy Manual to confirm that conditional resident status “terminates” when the agency issues a formal notice to that effect. In a Policy Alert issued on November 21, 2019, the agency clarified that a former conditional resident can apply to readjust status based on a new approved petition after receiving such a formal notice of termination. Under the agency’s prior position — which had been applied informally and inconsistently — the conditional resident had to be terminated by an immigration judge before being able to readjust.
Conditional residents are barred from adjusting status under the Immigration and Nationality Act (INA) § 245(a) unless they take the necessary steps to remove the two-year conditions on their status. INA §§ 245(d) and 245(f). That means that a person, for example, could not obtain conditional resident status based on marriage to a U.S. citizen, divorce that spouse, re-marry, and re-adjust during that two-year period. But the Board of Immigration Appeals (BIA) had interpreted those sections of the INA 28 years ago and held that the statute does not prohibit someone from readjusting if their conditional resident status had been terminated. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). The remaining question was at what point was conditional residency terminated: when USCIS issued a formal notice of termination or only after an immigration judge subsequently issued that finding? With this policy change, the agency is confirming that it happens with the USCIS notice.
USCIS has replaced its prior guidance found in Chapter 25.1(d) of the Adjudicator’s Field Manual with the current guidance in Volume 7, Part B of the Policy Manual.