If I filed my I-751 petition late, can I still travel while the petition is pending?

Understanding the risks to traveling after filing a late I-751 petition to remove the conditions on residence.

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Question

My U.S. citizen wife and I just went through a very bad divorce. We separated around the time when I was supposed to file my I-751 petition to remove conditions on my residence. I was hoping we would reconcile in time to file the I-751 together. But I was wrong. Now we are divorced and I had to file a late petition by myself with a letter explaining everything. I got my I-797 receipt and got my fingerprints taken. I am waiting to hear back from USCIS. The problem is my mother died a few days ago and I really need to go home to Kenya for her funeral. Even though my I-797 receipt says that I am free to travel, I am afraid to do it because I read on a forum online that the receipt is valid only for people who filed their I-751 on time. So my question is: Am I allowed to travel?

Answer

You may be allowed to travel with your I-797 receipt and a copy of your expired conditional resident card (or a temporary I-551 passport stamp), in spite of the fact that you filed your I-751 late. Still, it may be more prudent to wait until you receive a decision before traveling.

Technically, conditional residents who fail to file a timely I-751 Petition to Remove Conditions on Residence automatically lose their status. As a result, one might infer that such persons, upon filing late, would not be able to use the work and travel “extension” provisions of the I-797 receipt while their case is pending (the reasoning being that, since their status was lost, it cannot logically be “extended”).

However, things are quite different in practice: Conditional residents who filed late I-751 petitions have, in fact, been allowed to work and travel with their I-797 receipt — especially in cases such as yours, where the conditional resident files alone (and requests a waiver of the joint filing requirement, based on divorceabuse or hardship).

Unlike conditional residents who file their I-751 jointly with their spouse, I-751 petitioners who file alone are allowed to file their petition at any time (or at least so long as they have not already been ordered deported). Accordingly, they are not even required to provide any explanation for their tardiness — in contrast with joint I-751 petitioners, who are required to provide a good explanation, or “good cause,” for filing late. As a result, it is easier to argue that late I-751 waiver petitioners should be allowed to travel once their petition is pending.

That said, it may be prudent to wait until you receive a decision on your case before traveling, just in case your petition in denied and you are placed in removal proceedings while you are abroad — which would make it more difficult to keep fighting your case.

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LA-NOLO5:DRU.1.6.3.20141021.28794