Foreign nationals who get a green card on the basis of a marriage that is less than two years old are considered conditional residents. This means that their green card will expire after only two years. In order to become permanent residents, they will need to petition (either jointly with their spouse or individually with a waiver request) to remove the conditions on their residence, by filing form I-751 within the 90-day period before the green card’s expiration date.
For a variety of reasons, however, some conditional residents fail to file their petition on time. Such persons might (assuming they haven’t already been ordered deported, most likely because they missed a deportation hearing) be able to file their I-751 late.
However, conditional residents who intend to file jointly with their U.S. spouse cannot become permanent residents unless the government (U.S. Citizenship and Immigration Services or USCIS) is satisfied that their late filing can be excused for “good cause.” (If you are applying for a waiver of the joint filing requirement, you do not need to prove good cause.) In other words, the fact that someone whose marriage is ongoing simply forgot about or overlooked the deadline will likely not be accepted as sufficient reason for a late filing.
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 I-751 petitions.
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,” and what procedures to follow in the process.
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.
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.
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.)
Keep in mind, however, that the longer the length of time an I-751 petition is late, the more difficult it may be to prove “good cause” under any circumstance.
If you will need to file late a joint I-751, be sure to submit a written explanation of your “good cause” for the delay. Under current 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 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.
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 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, 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.
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 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, 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. Consult an attorney for a full analysis.