Form I-751: Removing “Conditions” on US Residency

An approved Form I-751 enables an immigrant to live in the US permanently. For some with happy marriages and uncomplicated backgrounds, this can be a simple process. For those of whose marriages do not work out or who suffered abuse, it can be very a complicated and tense process.  Anyone experiencing difficulties in their marriages has many issues to deal with at once. For immigrants, their ability to stay in the US is often a priority. Sarraf Gentile LLP can reduce your anxiety and help you keep the US your home despite the problems with your spouse. Your life story in America is not over, it is only just beginning.

Preparing & Filing USCIS Form I-751

Foreign nationals who marry a US citizen or permanent resident receive a conditional two-year green card. To become a lawful “permanent” resident (or LPR), the foreign national must have the “conditions” removed. This is done with a Form I-751 petition – proving that the marriage is legitimate.

For immigrants still married, the Form I-751 petition is frequently though not always a straightforward process that usually does not need a lawyer.

Complex I-751 Petitions: Filing Alone — Divorce, Separation, Abuse, Extreme Hardship

For those filing the I-751 alone relying on a wavier, the process is more complicated.  This is frequently the case when their a troubled or dissolved marriage.

For those who have to file the I-751 alone, a lawyer can tremendously help navigate this high stakes process and address the added complexity.

What is a Form I-751
Who Files a Form I-751
When to File a Form I-751
Proof of Filing a Form I-751
Unable to File an I-751 Jointly
Filing an I-751 When Divorced
Filing an I-751 When Separated
Filing an I-751 After Suffering Abuse
Filing an I-751 Involving Extreme Hardship
Form I-751 Basics: Costs, Evidence, Timing & Interview
What if an I-751 Petition is Denied? What Can I Do Next?

What is a Form I-751

The form I-751 is known as the “Petition to Remove Conditions of Residence.” Conditional residence is granted when applying for a marriage-based green card. Conditional residence is granted to those visa holders who are living in the US based on their own or their parent’s marriage to a US citizen or LPR.

Conditional residence only lasts two years. At the end of this two-year period, conditional residents file the form I-751 with the US Citizenship and Immigration Services (USCIS) to request that the conditions on residence be removed. If approved, the conditional resident becomes a permanent resident.

The purpose of the form I-751 petition is to ensure that the couple who marry do so with an honest desire to build a life together. This process is meant to identify fake or sham marriages that are designed to circumvent the immigration laws and are entered into simply to get a green card.

Who Files a Form I-751

The Form I-751 is filed jointly by the couple – both the US citizen or LPR and the foreign national sign it.  However, there are instances when the US citizen or LPR is unable, unwilling or shouldn’t sign the I-751. For example, if the couple has separated, is divorce or where domestic abuse exists such that the US citizen or LPR spouse is unable or unwilling to participate, then the conditional resident spouse may seek to have the joint filing requirement waived.  This is a special circumstance and is more complicated.

When to File a Form I-751

The Form I-751 must be filed within a specific period of time. That time begins 90 days before the expiration of the conditional resident’s two-year green card and ends with the green card’s expiration. For example, if a foreign national’s two-year conditional residence expires on December 31, the period of time in which the I-751 must be filed starts on October 2 and ends on December 31.  If the I-751 petition is not filed by the day the two-year period expires, the permanent resident loses status. Therefore, filing the petition within the 90-day period before status expires is important. For those filing alone and seeking a waiver, there is more flexibility. You are not beholden to the 90 day window. To make sure you are filing in the correct window, consult the USCIS 751 filing calculator, located here: https://www.uscis.gov/forms/filing-calculator-for-form-i-751-filing-jointly-with-your-spouse

Proof of Filing a Form I-751

Assuming an I-751 is properly completed and has all the required materials attached to it, it is submitted to USCIS.  Approximately four to six weeks after its submission, USCIS should respond by mailing a receipt notice that confirms that the petition was received.  This document is formally known as a form I-797C, Notice of Action (see example below).

This I-797C will extend the applicant’s conditional residence for an additional amount of time while USCIS reviews the application. Currently, the extension is for 24 months.  Once the two-year green card has expired, applicants who need to prove that they are lawful residents will need to show their expired green card and this receipt letter.  Together, they demonstrate that lawful presence of the applicant in the US and will allow the applicant to reenter the US after traveling abroad, accept employment or anything else that would require a green card.

Unable to File an I-751 Jointly

A conditional resident is sometimes unable to file the Form I-751 jointly. In other words, the US citizen or LPR through whom conditional residence was obtained will not or cannot sign the Form I-751.  However, it is possible to file the I-751 without the US citizen or LPR spouse.  In these cases, the conditional resident must seek a “waiver” of the joint filing requirement.

There are multiple options for seeking a waiver of the joint filing requirement.  Multiple choices may apply to each individual situation. Each option has benefits and drawbacks.  These options include:

(1) The marriage began in good faith, but was terminated through divorce or annulment.
(2) The marriage began in good faith, but the US citizen or LPR spouse was physically abusive or imposed extreme cruelty.
(3) The removal of the conditional resident from the US would result in an extreme hardship.

Selecting the appropriate option must be done carefully, thoughtfully and with a strategy in mind.

It is possible for a conditional resident to be become a lawful permanent resident when a waiver is requested.  However, it is more challenging given that USCIS will more closely scrutinize the I-751 petition and some additional evidentiary hurdles may exist. And given that an unsuccessful petition may result in removal proceedings for the conditional resident, the stakes are high.

Filing an I-751 When Divorced

Many conditional immigrants who divorce are unable to file an I-751 petition jointly with their ex-spouse.  Fortunately, the Form I-751 provides for an opportunity for a petitioner to select “divorce” as a basis for seeking a waiver. A personal statement or other type of evidence describing the circumstances of the divorce (or pending divorce) can be helpful for the I-751 waiver.

It is also important to note the nature of the divorce: fault or no-fault.

No-Fault Divorce: Where a divorce ends due to irreconcilable differences or a mutual decision that the relationship is not working, the I-751 should explain that the divorce was a no-fault action and detail the differences that led to cause the marriage to end. Some examples of irreconcilable differences include: disputes over whether to have children, financial issues or lifestyle, where to live, parental involvement, or anything else that might be relevant.  Attempts to save a marriage through counseling or mediation should also be detailed in the I-751 petition and the evidence of those efforts (such as bills from the marriage counselor) should be included as they demonstrate that the marriage was genuine.

Fault Divorce: Sometimes, a divorce is forced by the actions of one spouse. The divorce may be the result of a spouse’s conduct, such as infidelity, abandonment or imprisonment. In these cases, a copy of the divorce or annulment petition that details these facts should be included with the I-751. Where the conditional resident spouse was “at fault” in the divorce can negatively affect the petition and will require additional analysis and strategizing.

USCIS will only grant divorce waiver requests if it receives proof that the marriage has in fact been terminated, such as a divorce decree or annulment. It is therefore advisable to include evidence that a divorce has been initiated. This can include court documents that demonstrate the case was filed and is pending. Frequently, USCIS will mail a receipt notice (form I-797C) that extends the conditional resident’s green card for an additional period of time along with a “Request for Evidence” that asks for the final divorce decree to be submitted once it becomes available.

While joint I-751 petitions must be filed within the 90-day period before the conditional resident’s green card expires, those filing with a divorce waiver can file the petition any time after conditional resident status is granted and before the conditional resident is removed.

Filing an I-751 When Separated

Where a marriage breaks down, but before a divorce is filed or finalized, a conditional resident who seeks to remove conditions on residency is in a very difficult position. Where abuse or extreme hardship exists (those are described below) then they can be pursued as grounds for seeking a waiver.  Where those other waiver grounds are absent, a conditional resident must consider the fact that their status (i.e., lawful right to remain in the US) may expire before a divorce becomes final. This is common given how long some divorce proceedings can take.  In such instances, there are two principal options to consider:

(1) File the I-751 with proof that divorce proceedings have begun (or will be filed soon). It is best to include copies of certain key filings and the scheduled court dates related to the divorce proceedings.

(2) Wait to file I-751 and accept the risk of remaining in the US unlawfully (i.e., being “out of status”) and potentially being placed in removal proceedings.  The goal would be to file the I-751 at a later date when circumstances change and a proper divorce-based waiver request can be made.

While joint I-751 petitions must be filed within the 90-day period before the conditional resident’s green card expires, those filing with a divorce waiver can file the petition any time after conditional resident status is granted and before the conditional resident is removed.

Filing an I-751 After Suffering Abuse

A conditional resident that suffered domestic abuse at the hands of their spouse may seek a waiver of the I-751 joint filing requirement by proving either “battery” (which is physical violence) or “extreme cruelty” (which can include punching, slapping, pushing, forced sex, or some other form of nonphysical abuse).

In this context, “extreme cruelty” is nonviolent abuse intentionally inflicted to dominate, control, or humiliate. This is very much a case by case analysis.  However, examples of behavior that conditional residents may use to prove “extreme cruelty” include:

– threats to call immigration services or refusing to jointly file a form I-751
– threats to divorce, especially if divorce is culturally taboo
– threats to physically hurt the conditional resident or others
– invasions of privacy to exercise control (e.g., intercepting correspondences, monitoring conversations and computer use, etc.)
– withholding money or food
– prohibiting or limiting contact with family or friends
– prohibiting movement such as confiscating the conditional resident’s driver’s license or passport
– destroying or disposing of personal property
– repeated demonstrations of anger or screaming
– cruel name calling, insults and other acts to humiliate the conditional resident (publicly or privately)

As difficult as it may be to recount such events, applicants should provide as many details and specifics examples of abusive conduct. Evidence of domestic violence should be more than a personal statement. They can include: official reports from police and medical personnel; medical records and photographs of injuries; affidavits from social workers and school officials; or letters from others who can describe instances of abuse.

Finally, it is important to note that seeking a domestic abuse waiver for filing an I-751 jointly with your spouse, differs significantly with a self-petition under the Violence Against Women Act (VAWA), which allows domestic abuse victims and their children to self-petition for a green card based on marriage to a US citizen or LPR.

Filing an I-751 Involving Extreme Hardship

A conditional resident may also request that the “conditions” on residency be removed if deporting the conditional resident from the US would cause “extreme hardship.” This option has the added benefit of waiving the I-751 joint filing requirement as well as avoiding the requirement of proving a bona fide marriage. However, demonstrating “extreme hardship” is very difficult.

Applicants should submit as much evidence as possible given that USCIS will consider any relevant credible evidence. However, only the period in which the conditional resident was living in the US is relevant, so any such evidence must come for that period of time. Examples of circumstances that conditional residents may use to prove “extreme hardship” include:

– living in the US for an extended period of time and only having family or ties in the US such that removal to another country would be cruel
– being unable to speak the language of the country to which deportation would occur
– US citizen children accompanying the conditional immigrant to a foreign country would have difficulty assimilating or would not receive adequate medical care or education
– US-based relatives would suffer economically by the loss of the conditional resident
– the conditional resident would be unable to find employment in the deported-to country due to poor economic conditions, discrimination, or a lack of applicable jobs
– medical issues that cannot be adequately treated abroad
– the conditional resident would suffer persecution or discrimination in the deported-to country his is similar to the standards for asylum in the US)
– the US citizen spouse caused the marriage to end (e.g., abandonment, adultery, etc.) such that a joint filing is not possible

Evidence that your marriage was genuine and how it ended are not essential, but helpful.

Form I-751 Basics: Cost, Evidence, Timing & Interview

Costs

The filing fee for a form I-751 is $595.  A biometric services fee of $85 is also required for petitioners.  Because many form I-751 petitions can be filed without the need of a lawyer, these are generally all the costs associated with filing. More complicated petitions require a lawyer that usually charge a flat fee.  Sarraf Gentile LLP charges between $1,500 and $5,000 for each I-751 petition, depending on the complexity of the matter. However, all initial consultations are free. To request a quote, click here.

Evidence

The purpose of the I-751 petition is to verify that a marriage is legitimate and honest. Therefore, submitting strong evidence that shows that the marriage is genuine is critical.  This evidence can take many forms, including wedding and family photographs, joint bank statements, joint leases or mortgages, joint insurance policies, joint credit card accounts and letters from family or friends. In most cases, the couple are required to appear for in person interviews to answer questions.  These are all done to test the credibility of the marriage.

Timing

A form I-751 petition usually takes between 1 and 2 years, and sometimes longer depending on the individual case and the processing center involved.  Once the government approves the form I-751, the conditional resident becomes a lawful permanent resident and receives a ten-year green card. Given the length of time involved in processing an I-751 application, some applicants who want to become US citizens, can file an N-400 while the I-751 is still pending.  That way, both the I-751 and the N-400 can be adjudicated based on a single interview.

Interview (Avoiding or Preparing)

The immigration laws require a couple to appear for a personal interview in order for USCIS to remove the conditions on residency and allow a foreign national who obtains US residency status through marriage to become a permanent US resident. But if USCIS is satisfied that the couple is legitimately married (i.e., did not marry simply to evade immigration laws and obtain lawful US residency), they can waive the interview and approve the I-751 without an interview.

The best way to avoid an interview is by submitting an I-751 that is ironclad and leaves no doubt that the marriage was bona fide (or legitimate). This means collecting not simply the best evidence possible, but doing so early and from as many sources as possible.  This helps establish the credibility of the evidence. And starting early is key, to indicate that the marriage was entered into for lawful purposes and continues to the present, thus supporting its intended purpose.  Insufficient evidence to prove a bona fide marriage, or circumstances that raise doubt about the credibility of the marriage, increase the likelihood of an interview.

For those for whom an interview is required, the best advice is to be honest. No other recommendation comes close to being as important as simply being truthful. You should also bring all the evidence that you submitted (and any others that you might have collected after the submission), arrive early, dress formally and be prepared to answer intimate questions about your relationship.

What if an I-751 Petition is Denied? What Can I Do Next?

There are several options if an I-751 is denied. While the typical option of an “appeal” is not available, there are ways to indirectly seek a review of the denial. Additionally, a new I-751 petition can sometimes be filed, especially if circumstances change. There are four basic options:

(1) File a Motion to Reconsider. If the denial was legally incorrect, a Motion to Reconsider can be filed on Form I-290B Notice of Appeal or Motion. To prevail, the applicant must show that the denial was incorrect. Such a motion should include legal authority, relevant statutes, regulations or precedent decisions, and explain why the law was incorrectly applied to the relevant facts.

(2) File a Motion to Reopen. If new facts or evidence are available to support the I-751, a Motion to Reopen can be filed on Form I-290B Notice of Appeal or Motion. To prevail, the applicant must submit affidavits and other evidence demonstrating why the I-751 should have been approved. Essentially, “new facts” mean those that were not previously submitted to USCIS. Importantly, if the I-751 was denied due to abandonment (i.e., a failure to timely respond to a Request for Evidence or a Notice of Intent to Deny, or a failure to appear for an interview) a Motion to Reopen should also include evidence that: (i) the requested evidence was not material; (ii) the requested material was previously submitted; (iii) USCIS erred because the material was actually submitted timely; or, (iv) USCIS erred because it did not properly send the request for evidence or for your appearance.

(3) File Another I-751 (Waiver) Petition. While jointly filed I-751 petitions must be filed within a 90 day period before the two-year conditional residency expires, I-751 petitions that seek a waiver may be filed at any time before a final order of removal has been entered. Accordingly, another I-751 petition can be possible. While there is technically no limit to the number of I-751 petitions that can be filed, applicants should only file I-751 in good faith and promptly upon being able to establish eligibility for a waiver. (Because USCIS has original jurisdiction over I-751 petitions, any additional I-751 must be filed with USCIS first, even if removal proceedings have commenced.)

(4) Renew The I-751 in Removal Proceedings. If an I-751 petition is denied and an I-862 Notice to Appear has been issued, an Immigration Judge may review the I-751 denial. It is important to recognize, however, that the Immigration Judge can only review the reasons the I-751 was denied. Therefore, if

circumstances change such that a different waiver ground becomes available, a new I-751 will need to be filed with USCIS, at which point the Immigration Judge may continue the removal proceeding to give USCIS time to decide the new I-751 petition. If the new I-751 petition is approved by USCIS, the Immigration Judge may then dismiss the removal proceeding. But if the new I-751 is denied, the Immigration Judge may review the basis for the denial.  During this additional review, the burden of proof is on USCIS to prove that either the facts in your petition were untrue or that USCIS properly denied your I-751 petition. The conditional resident may then submit additional evidence to the Immigration Judge to show that the I-751 should be granted, even if that evidence was not previously submitted to USCIS.