What Happens If USCIS Denies I-751 Petition for a Permanent Green Card?

Because no direct appeal from an I-751 denial is available, you will want to make the most of your court hearing before an immigration judge.

By , J.D., University of Washington School of Law

Conditional U.S. residents who gained their status through marriage to a U.S. citizen must, within 90 days of the two-year anniversary of their approval, submit a Form I-751 to U.S. Citizenship and Immigration Services (USCIS). The purpose of this filing is to give USCIS a second chance at investigating whether the marriage was, in fact, the real thing; or was just a sham to get the non-citizen a green card (lawful permanent resident status).

In the standard scenario, the immigrant would file the I-751 jointly with his or her U.S. husband or wife, and include documents showing that the couple is, indeed, still married, living together (or else not doing so for a good reason), 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. If that happens, what do you do next?

No Right of Appeal From USCIS's I-751 Denial

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.

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.

What Happens in Immigration Court After I-751 Denial

An immigration court judge will take a fresh look at the immigrant's case, along with any other defenses to deportation that the immigrant asserts. It is permissible to once again present all the documents and even to add more, if this might address the concerns or confusion that led to the denial.

The immigrant can testify (tell his or her story in person) and call witnesses, in order to convince the judge that the marriage is the real thing.

If the judge is convinced, he or she 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.

Preparing for Immigration Court Hearing

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 for the U.S. government. The 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 been working with 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.

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