Foreign nationals who get a green card on the basis of a marriage that's less than two years old at the time are considered conditional residents at first. This means that they receive a green card; but also that the green card will expire after two years. In order to go from conditional to permanent resident, they will need to petition the U.S. government (either jointly with their spouse or individually with an accompanying waiver request) to remove the conditions on their residence; and normally do so within the 90-day period before the green card's expiration date.
But what if they submit this petition late? That could lead to losing their residence altogether. Their tardiness can, however, be excused for "good cause." This article describes why conditional residents who have failed to file their I-751 on time should still file even if they are late, how to prove "good cause" in cases that require this showing, which types of cases don't require a good cause showing, and what procedures to follow.
To petition for this upgrade from conditional to permanent resident status, the immigrant must submit form I-751 to U.S. Citizenship and Immigration Services (USCIS), along with documents showing that their marriage is ongoing and bona fide. They have a time window within which they must do so: as mentioned, within 90 days of the end of their two years as a conditional resident.
For a variety of reasons, some conditional residents fail to file their I-751 petition on time. Such persons might be able to file their I-751 late. But simply forgetting about or overlooking the deadline will likely not be accepted as "good cause" or sufficient reason for a late filing.
(We're assuming they haven't already been ordered deported, which could happen at a fast pace if they were ordered to but missed a deportation hearing.)
Conditional residents who fail to file their I-751 can no longer use their green card for employment and travel purposes. They may also be placed in removal (or "deportation") proceedings. The stakes are high, so there's every reason not to simply give up and hide.
Filing a late I-751 petition could avoid some or all of these problems. For one thing, it ups the chances that USCIS, rather than an immigration judge, will decide the application.
In the past, conditional residents who were placed in removal proceedings were often granted what's called a "continuance" or postponement of the hearing, so as to have time to file a new I-751 with USCIS and get an answer. That answer would then be reviewed by the immigration court. Under the Trump Administration, however, immigration judges have been discouraged from granting continuances unless they themselves think there's a good chance of USCIS approving one's request. (See Matter of L-A-B-R- et. al., 27 I&N Dec. 405 (A.G. 2018).)
That means if you get an unsympathetic judge, you face a double whammy: The judge will neither let you wait for a USCIS decision nor grant your permanent residence him- or herself.
U.S. immigration laws and regulations do not actually define what "good cause" means. However, USCIS has issued certain policies to guide its decisions on late-filed I-751 petitions. USCIS has broad powers (or discretion) to determine the meaning of "good cause" for filing late, and will approach such applications on a case-by-case basis. The agency's current policy recognizes the following as examples of good cause:
Other circumstances could certainly fall under the definition of "good cause." It will be up to you to identify and provide evidence of these.
If you simply forget to turn in your joint I-751 on time, try to think of circumstances in your life (be they work- or family-related) that could explain your memory lapse, and then ask an attorney if such circumstances could be framed in terms of "good cause." (You cannot claim USCIS's failure to notify you of the upcoming deadline as good cause, however.)
Be sure to submit a written explanation of what the "good cause" for your delay was. Under USCIS policy, if you fail to submit this written explanation, you will first receive a request for evidence (RFE); then, if you fail to submit such explanation in response to the RFE, your I-751 will be automatically denied.
It is also very important, although not technically required, to support the explanation with documents attached as evidence. For example, if you are claiming good cause based on the death of a family member, you should probably submit a copy of the death certificate and evidence of your relationship to the decedent. Here again, if it has not already done so, USCIS may send you an RFE.
If, having already sent you an RFE, USCIS is not yet convinced that you have established good cause, it may schedule you for an interview. There, you will get a last chance to present your case in more detail. Otherwise, the agency could decide to deny your I-751 right away.
Keep in mind that the longer the length of time an I-751 petition is late, the more difficult it will probably be to prove "good cause" under any circumstance.
If instead of filing jointly with a U.S. spouse you are applying for a waiver of the joint filing requirement, you do not need to prove good cause. In fact, you are allowed to file the I-751 petition at any time (so long as you have not already been ordered deported).
Accordingly, you would not be required to provide any explanation for tardiness—for humanitarian reasons, since the reasons the applicant might be filing alone and requesting a waiver often have to do with difficult situations such as an abusive marriage, divorce from the U.S. petitioner, or other extreme hardship.
You might be allowed to travel outside the U.S. and return 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 might be prudent to wait until you receive USCIS's decision before traveling.
Technically, conditional residents who fail to file a timely I-751 Petition to Remove Conditions on Residence automatically lose their immigration status in the United States. 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, in practice, conditional residents who filed late I-751 petitions have been allowed to work and travel with their I-797 receipt—especially in cases where the conditional resident files alone, requesting a waiver of the joint filing requirement based on divorce, abuse or hardship.
That said, the safest bet is to wait until receiving a decision on the case before traveling, just in case the petition in denied and you are placed into removal proceedings while you are abroad—which would make it more difficult to keep fighting your case.
Given that your situation is unusual, you would be well advised to hire an experienced immigration attorney to handle your I-751 case. The attorney can analyze the facts and spot any potential problems, help gather convincing documents and prepare the forms and a convincing cover letter, and monitor the progress toward approval.