The day United States Citizenship and Immigration Services (“USCIS”) approves a marriage based application for lawful permanent residence is often filled with joy, excitement, and anticipation for the future that lies ahead. The happy couple is not usually thinking about filing future petitions with USCIS. This article gives a brief overview of what you need to know if you have a two-year green card and need to remove the conditions on your lawful permanent resident status.
Who has to file form I-751?
The short answer is Conditional Lawful Permanent Residents (“CLPR”) – i.e., foreign nationals who receive marriage based green card valid for two years. If an application for permanent residence is afforded to a foreign national, based on marriage, in advance of the parties being married for two years, the I-751 petition must be filed in order for the foreign national to avoid termination of their conditional resident status. This obligation cannot be avoided by filing form N-400 to apply for U.S citizenship or by filing form I-90 to renew the lawful permanent resident card.
How is the I-751 filed?
The I-751 petition must be filed to USCIS with the required filing fee. The timing of the filing depends on the type of I-751 filed. Generally speaking, the I-751 can either be a joint filing or a waiver filing. In the joint filing, the United States Citizen (“USC” spouse) and Conditional Lawful Permanent Resident (“CLPR”) sign the I-751 petition. In the waiver filing, only the CLPR signs the I-751.
A CLPR can request a waiver of the joint filing requirement by establishing eligibility under one (or more) of the following criteria: (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. 8 C.F.R. section 1216.5(a)(i-iii).
According to 8 CFR section 1216.4(a)(1), an I-751 JOINT petition must be filed during the 90 day period preceding the expiration of the foreign national’s lawful permanent residence. For example, if conditional lawful permanent residence terminates on September 1, 2015, the I-751 joint must be filed (and received by USCIS) between June 3, 2015 and September 1, 2015. It cannot be filed in advance of the commencement of the 90 day period. An I-751 joint petition can be lately filed but the CLPR must establish, in writing, that there was good cause for the failure to file Form I-751 within the required time period. 8 C.F.R. section 1216.4(a)(6).
The timing of the filing of an I-751 petition is not as rigid if the CLPR files a waiver petition since an I-751 waiver can be filed before, during, or after the 90 day filing window that applies to jointly filed petitions. Matter of Stowers, 22 I&N Dec. 605 (BIA 1999.) In some instances, the CLPR may have no choice but to lately file a I-751 waiver petition. This commonly occurs when a marital relationship becomes abusive after the filing of an I-751 joint petition.
It is important to note that upon the filing of the I-751 petition, the status of the CLPR is extended while the petition is pending. Evidence of the status extension initially is in the form of the I-751 receipt notice. If the I-751 petition is not adjudicated by USCIS within a year of the I-751 filing, then the CLPR should be able to obtain an I-551 stamp in their passport as evidence of their valid status. USCIS may or may not schedule an interview in order to adjudicate the petition.
What supporting documents should be included?
The most persuasive supporting documents are those showing the continuation of the parties’ joint life together after the approval of the CLPR status. Useful documents include those similar to what was provided at the initial I-485 marriage based filing: evidence of joint residence (lease, deed to property); jointly filed taxes; documents showing comingling of financial resources; family photos; affidavits from family and friends; and evidence of joint auto and health insurance. None of these items are absolutely required but it is best to provide as many as possible in order to avoid a Request for Evidence (“RFE”).
What should be done if divorce proceedings initiate (but are not finalized) before the expiration of the 90 day window to file the I-751 petition?
Presumably in this situation, the USC will not be signing the I-751 petition since divorce proceedings are pending. Therefore, the CLPR will file an I-751 waiver petition in advance of the expiration of their conditional permanent residence card to ensure his/her CLPR status is not terminated. In this filing, the CLPR should note in a separate statement that divorce proceedings are pending, and the CLPR should expect USCIS to issue a RFE for the divorce decree to be provided in support of the waiver petition. If the divorce decree cannot or is not provided to USCIS in response to an RFE, the I-751 will be denied.
What happens if the I-751 petition is denied?
If an I-751 joint or waiver petition is denied, a CLPR may seek review of the petition before the Immigration Judge (“IJ”). Note that a CLPR continues to be work authorized while removal proceedings are pending.
In conclusion, a Conditional Lawful Permanent Resident should consult a licensed immigration attorney to determine how and when to file to remove the conditions on his/her lawful permanent resident card. Filing missteps can lead to a loss in filing fees, termination of status, or placement into removal proceedings. If you have questions about an I-751 filing, or any other immigration related issues, please contact an immigration attorney at Immigration Attorneys, LLP.
Immigration Attorneys, LLP focuses its practice in the area of immigration and nationality law. We represent clients in a wide variety of immigration case matters including family and employment-based work, deportation defense work, immigrant and non-immigrant visa work, consular processing overseas and naturalization matters.