Here, we'll discuss a situation where the binational couple files the I-751 petition to go from conditional to permanent residence jointly (perhaps separated at the time, but on good terms) but then the U.S. petitioner files for divorce. It's less than idea timing in the sense that, had the couple divorced before filing the I-751, the immigrant could have simply applied solo, by including a request for a waiver of the joint filing requirement.
Since it's too late for that, the question is, what's next? Will U.S. Citizenship and Immigration Services (USCIS) deny the I-751 and place the immigrant into removal (deportation) proceedings? Not necessarily, as we describe below. The two main possibilities include that:
First of all, the simple fact that your U.S. spouse filed for divorce, or that you were physically and/or legally separated at the time of filing the I-751 Petition to Remove Conditions on Residence is not enough for USCIS to automatically deny the I-751 petition (assuming it even knows about it).
USCIS might, at most, send a request for evidence (RFE) asking that you submit your final divorce decree. In such a case, you should perceive the RFE more as an opportunity than as an obstacle—because even if you failed to respond to the RFE by sending the requested document, while ample evidence on your record already showed that your marriage had been entered into in good faith, your petition could still be granted.
Once your divorce becomes final, however, you should quickly send a copy of your divorce decree to USCIS. It might be good (though not strictly required) to attach this document to a cover letter explicitly requesting that your initial joint petition be amended and changed into a divorce-based waiver petition.
In the alternative, the immigrant could file an entirely new I-751 petition, along with a waiver request based on the divorce and/or other grounds, such as extreme hardship or abuse. Indeed, there is no legal limit on the number of I-751 petitions a person may file—although practically speaking, submitting multiple filings could confuse U.S. immigration officers and, therefore, delay the adjudication of the case.
In either situation, the immigrant should consider also providing an explanation of the circumstances of the divorce, with evidence of attempts to save the marriage (copies of marriage counseling records, for example), in order to strengthen your good faith marriage claim. Be prepared to elaborate further on these points at a future interview with a USCIS officer.
Given that your situation is unusual, consider hiring an experienced immigration attorney. The attorney can analyze the facts of your case and spot any potential red flags that might cause USCIS to believe your marriage wasn't bona fide in the first place, gather supporting documents and prepare the paperwork and a cover letter that summarizes why your case deserves a favorable decision, and monitor progress toward approval.
]]>This two-year testing period makes some couples understandably nervous, particularly if their marital relationship is rocky and they're not sure it's going to last. One of their big questions is often whether USCIS is likely to call them in for an interview, or whether the agency can just approve the case without one. This article will discuss:
According to U.S. immigration law, U.S. Citizenship and Immigration Services (USCIS) is expected to schedule EVERY conditional resident who has filed an I-751 for an in-person interview. In practice, however, many if not most of these interviews are "waived."
In order to grant a waiver, USCIS must decide, upon review of the case file, that it has received enough evidence with which to approve the immigrant’s joint petition to remove the conditions on residence (Form I-751) without conducting an interview and meeting the couple personally. This documentary evidence must clearly show that the marriage is bona fide, and not a sham or fraud to receive a green card.
In addition, according to guidance for USCIS officers found in a 2018 memo, USCIS must have already conducted an interview with the immigrant, observe no signs of fraud or misrepresentation in the Form I-751 or supporting documents, and believe there to be no complex facts or issues of law that should be addressed in person with the applicant before it waives the interview.
As you can see, whether USCIS chooses to call someone in for an interview depends largely on the facts of the case and the quality of the I-751 submission. If yours was a marginal case to begin with (perhaps the officer had doubts about your relationship and asked for extra evidence at that time, for instance), the agency might call you in for an interview just to have a thorough second look at your case. But USCIS has recently been trying to waive more interviews than ever, in order to deal with its backlog of cases.
If the documents you submit with Form I-751 seem sparse or don’t really point to a shared life, with joint assets, shared financial obligations, and so forth, that might give USCIS cause to refuse to waive the interview requirement in your case; in other words, to insist that both of you come in for an interview.
So, be sure to provide recent, high-quality documentation; don't make the mistake of simply copying the same old documents you submitted the first time around.
Also, if your was so rocky that the U.S. spouse has refused to sign onto the joint petition, and the intending immigrant is asking for a waiver of the joint-filing requirement, realize that this raises the chances of the immigrant being called in for an interview.
If you have already submitted Form I-751 and are called in for a USCIS interview, you still have a chance to gather more documents proving your valid marriage, and bring them to the interview in person.
If the marriage was the real thing, but you've had arguments or separations, that's not necessarily a strike against the immigrant's green card eligibility. The key is to show all the steps you've taken to try to save the marriage, such as attending couples counseling.
Try to obtain written affidavits from friends, counselors, and religious leaders with whom either or both of you has discussed the situation or sought help. If you sent letters or messages to friends expressing sorrow or frustration with the state of your marriage, copies of those could be worth submitting. Get additional ideas from We’re Separated: Can I Continue With My Marriage-Based Green Card Application?.
Regardless of what stage of the process you're at, if your marriage isn't going well, and you're worried about proving that it's bona fide when it's time to file Form I-751, seek the assistance of an experienced immigration attorney. The attorney can help with the paperwork, draft explanatory cover letters or legal memos, and accompany you to the interview. Also see How Expensive Is an Immigration Lawyer?.
In the standard scenario, the immigrant would file the I-751 jointly with their U.S. husband or wife, and include documents showing that the couple is, indeed, still married, living together (or not doing so for a good reason, such as short-term enrollment in school), and sharing social, financial, and other aspects of their lives. Various waivers of the joint filing requirement are also available, for unusual situations such as divorce or abuse by the U.S. citizen.
But even after all that preparation and submission of documents, USCIS might be unconvinced, and deny the I-751 instead of granting permanent residence (or in legal jargon, a "removal of the conditions on residence").
If that happens, what do you do next? Here, we'll discuss:
Unlike some other applications an immigrant can file with USCIS, there is no way to request that the agency's decision on an I-751 be reviewed on appeal. Indeed, it is likely that USCIS already provided more than one chance to satisfy its criteria, by sending a Request for Evidence (RFE) requesting more documents and evidence before it determined that the marriage is not bona fide or didn't otherwise satisfy the legal criteria for approval.
If however, the immigrant has no other U.S. immigration status at this point (as is likely), USCIS will refer the case to Immigration Court for removal (deportation) proceedings. Though this can frightening, it can also serve as the equivalent of an appeal.
An immigration court judge will take a fresh look at the would-be immigrant's case, along with any other defenses to deportation that the immigrant asserts. It is permissible to once again present all the documents submitted with the I-751 and to add more, if this might address the concerns or confusion that led to the denial.
The immigrant can testify (tell their in person) as well as call witnesses, in order to convince the judge that the marriage is the real thing or to overcome some other basis for USCIS's denial.
A judge who is convinced has the power to approve the immigrant for U.S. lawful permanent residence (a green card). USCIS will need to take care of its final processing, however.
In order to prepare for a hearing in immigration court, it's worth hiring an attorney if at all possible. Court procedures are complex and difficult for nonlawyers to understand, and the immigrant will have to face cross-examination by an attorney representing the U.S. government and arguing strenuously for their deportation. Your attorney will need to spend many hours preparing you and attending the hearings with you.
Whether or not you hire an attorney, do your best to figure out why USCIS denied the case in the first place, and how you can overcome its concerns with documents or testimony.
The most powerful documents to prove the bona fides of your marriage are those that come from independent sources; for example, from a marriage counselor who has worked with both of you and can supply an affidavit explaining that you've had some issues, but tried to work them out as any couple would; or a doctor who has treated you for fertility issues; or from banks, insurance companies, and so on, showing your shared assets.
Most immigration court proceedings involve, at a minimum, a master calendar (scheduling) hearing and an individual, merits hearing, where you actually present your case. Sometimes the merits hearing lasts for more than one session. It's a long process, but many immigrants have gone through it and won the right to U.S. lawful permanent residence.
]]>While you wait for an answer from U.S. Citizenship and Immigration Services (USCIS), you’re likely worried. You might have questions like:
We'll try to answer those here.
According to U.S. immigration law, a person loses permanent resident status automatically after failing to file an I-751 on time. If that's you, you immediately began accumulating what's known as “unlawful presence” in the United States. It is now possible for the U.S. government to legally remove (deport) you.
But have they actually started that process yet? The U.S. immigration bureaucracy moves slowly.
The first important question here is whether you have received an I-797 receipt from USCIS yet, showing that you filed the Form I-751. If and when you receive your I-797 receipt, you should definitely not think of yourself as “illegal” or undocumented, because that receipt (coupled with your expired conditional resident card) would allow you to obtain a Social Security card, to work legally, and to re-enter the U.S. if you chose to travel abroad.
Filing the late I-751 did not completely reinstate your conditional resident status, however. If USCIS denies your I-751 petition and you must leave the United States and then try to return, you might be hit with a three-year ban for the time you spent in the U.S. between the expiration of your resident card and (at least) your actual I-751 filing date.
If you have not gotten that I-751 receipt from USCIS, the next question is whether you have received anything by mail from the U.S. immigration court, such as a Notice to Appear (NTA) scheduling you for a hearing.
If you haven't, try calling the Executive Office for Immigration Review (EOIR)’s case information system. The idea is to make sure that you have not yet been placed into removal proceedings or been ordered removed in absentia (which would happen if you didn't attend a scheduled hearing). You will need your “A” number, which you can find on your conditional resident card.
If you have already been ordered removed, even if this happened without your knowledge, then your I-751 will surely be denied. In such a situation, you should try to get the immigration judge to reopen your case. This could allow you to file a new I-751, in immigration court. An attorney can help you with this.
Whatever happens, do not forget that, regardless of your immigration status, you preserve at all times certain basic constitutional rights (against illegal searches, for example), which all government officers are required to respect. Contact an experienced immigration attorney if you need more information on this subject.
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