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. Although conditional residents who are placed in removal proceedings may then be granted a continuance to file a new I-751, which would be reviewed by the immigration court, they would probably have had an easier time processing and gaining approval of the same petition from USCIS.
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, as described in, "Is USCIS failure to advise conditional resident of need to file I-751 “good cause” for filing late?".)
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.