Law Office of Irwin M. Avelino

I-751, Petition to Remove the Conditions of Residence for Spouses and Children

I-751_conditional_residence_Immigration_Attorney_Lawyer_Avelino_Los_AngelesIntroduction

Immigration law imposes an initial two-year period of conditional residence on certain spouses and dependent children who obtain immigration status based on a marriage to a U.S. citizen or LPR.  The laws establish a detailed procedure for removing this condition, which begins with the timely filing of a petition with fee, and extends through the appearance at any requested interview before USCIS by the petitioner(s) and/or derivatives.

Unless otherwise specified by the statute or regulations, an individual granted conditional permanent resident (CPR) status enjoys the same rights, privileges, responsibilities and duties as other permanent residents. These include but are not limited to the right to apply for naturalization (if otherwise eligible), the right to file petitions on behalf of qualifying relatives, the privilege of living and working in the United States, and the duty to register with the Selective Service System, when required.

The CPR and his or her spouse bear the burden of jointly filing Form I-751 with either the California or Vermont Service Center (CSC or VSC, respectively), depending on their place of residence. Upon accepting a properly filed Form I-751, USCIS must issue a Form I-797, Notice of Action (Form I-797), extending the petitioner’s CPR status for a one-year period (unless such status had previously been terminated).  This allows the recipient to travel, work, and otherwise enjoy benefits and protections associated with permanent residence in the United States even if his or her originally issued Form I-551, Permanent Resident Card has expired.

Form I-751 petitions may remain pending for more than one year, or beyond the Form I-797 validity period due to processing delays, issuance of unnecessary RFEs, and improvident transfers to district offices for interview. USCIS guidance indicates that if a CPR whose I-551 has expired, and whose I-797 has expired or is about to expire, requests proof of his or her status for travel or employment, the agency should, after collecting the expired Form I-551, issue either:

  • A temporary I-551 stamp with a 12-month expiration date in the conditional resident’s unexpired, foreign passport (if the expiration date of the passport is one year or more); or
  • If the conditional resident is not in possession of an unexpired foreign passport, a Form I-94 (arrival portion) containing a temporary I-551 stamp with a 12-month expiration date and a photograph of the conditional resident.

 Adjudication of Jointly Filed and/or Waiver Petitions

In adjudicating a jointly filed Form I-751, under the regulations, USCIS must determine whether:

  1.  The qualifying marriage was entered into in accordance with the laws of the place where the marriage took place;
  2. The qualifying marriage has been judicially annulled or terminated, other than through the death of the spouse;
  3. The qualifying marriage was entered into for the purpose of procuring permanent resident status for the alien; or
  4. 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) in connection with the filing of the petition through which the alien obtained permanent residence.

If derogatory information is determined regarding any of these issues, the director shall offer the petitioners the opportunity to rebut such information. If the petitioners fail to overcome such derogatory information the director may deny the joint petition, terminate the alien’s permanent residence, and issue a notice to appear [NTA] to initiate removal proceedings. If no unresolved derogatory information is determined relating to these issues, the petition shall be approved and the conditional basis of the alien’s permanent resident status removed, regardless of any action taken or contemplated regarding
other possible grounds for removal.

Where the parties are unable to file jointly, the conditional permanent resident may file Form I-751 alone at any time prior to receiving a final order, provided he or she requests a waiver, was not at fault in failing to meet the filing requirement, and is able to establish that:

  • Deportation or removal from the United States would result in extreme hardship;
  • The marriage upon which his or her status was based was entered into in good faith by the conditional resident, 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
  • The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the spouse or child was battered or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent.

If accompanied by sufficient supporting documentation to establish the bona fides of the marriage, or in
the case of a waiver, eligibility for the requested basis or bases, the service center may approve the Form I-751 petition without referral to the district for an interview. Likewise, where the service center is satisfied that the marriage at issue was entered into solely to evade immigration law, and such fraud has been verified as required, the service center may deny the Form I-751 without sending it to the district. Prior to doing so, the service center must provide the petitioner with a Notice of Intent to Deny (NOID) and an opportunity to examine and rebut the evidence of record.

Referral for Interview

Where the service center is unable to resolve outstanding evidentiary or other issues, the case should be referred to the district for an interview. USCIS guidance emphasizes that interviews should only be considered when:

  • Evidence purporting to establish the bona fides of the marriage has been submitted, yet such evidence does not satisfy the Director that the marriage was not entered into for the purpose of evading the immigration laws of the United States; and/or
  • In waiver cases, the Director has determined that the evidence submitted to establish eligibility for the requested waiver leads to an inconclusive result and that an assessment from a live interview seems appropriate.

If derogatory information is found during the interview process, the district director must offer the petitioner(s) an opportunity to rebut the information. Failure to establish eligibility for removal of conditional residence may result in denial of the petition, termination of the foreign-born petitioner’s CPR status, and placement into removal proceedings. So, too, may failure to timely file the Form I-751 or appear as requested for an interview.

Late and/or Multiple Filings and Removal Proceedings

USCIS may accept a late filed Form I-751 and agree to reschedule a missed interview for “good cause and extenuating circumstances.” The agency recognizes that “[t]he law provides for broad discretion as to what constitutes good cause and extenuating circumstances.” Examples include but are not limited to: hospitalization, long term illness, death of a family member, the recent birth of a child (particularly if there were complications), and a family member on active duty with the U.S. military. In a recently released interim policy memorandum, USCIS clarified that where an untimely joint Form I-751 lacks any written explanation to establish good cause and extenuating circumstances, the agency will issue an RFE affording the petitioner(s) an opportunity to comply.

There is no limit on the number of Form I-751s a petitioner may file. While late-filed joint petitions require written proof of good cause or extenuating circumstances, waiver petitions can be filed without such proof at any time prior to the entry of a final order. Where the basis for seeking removal of CPR status changes prior to final adjudication of a pending petition, the petitioner may file a new I-751. USCIS may also amend a pending petition. For example, where the marriage forming the basis of a jointly filed I-751 ends, the service center after receiving a final divorce decree may amend the original filing and adjudicate it as a waiver case. Any other basis for amending a pending petition must be referred to a district office, which may or may not require the petitioner to file a new I-751.

USCIS maintains original jurisdiction over all I-751 petitions, including those filed by respondents in removal proceedings. Where a respondent in removal files a new joint or waiver petition with USCIS, the immigration judge must grant a continuance until the Form I-751 is adjudicated. USCIS guidance instructs adjudicators to consider any additional or different evidence, or alternate ground for a waiver presented in new or multiple filings. Thus, the role of the immigration judge is to review only those Form I-751 petitions that have been denied by USCIS; an immigration judge may not accept or adjudicate I-751 petitions in the first instance. USCIS does not track the outcome of I-751 cases that result in initiation of removal proceedings.