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

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 or fraud 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 their U.S. husband or wife, and include documents showing that the couple is, indeed, still married, living together (or not doing so for a good reason, such as short-term enrollment in school), 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 instead of granting permanent residence (or in legal jargon, a "removal of the conditions on residence").

If that happens, what do you do next? Here, we'll discuss:

• the lack of appeal rights
• the probable referral to immigration court for removal (deportation) proceedings, and
• how to prepare for these immigration court proceedings.

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 or didn't otherwise satisfy the legal criteria for approval.

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 would-be immigrant's case, along with any other defenses to deportation that the immigrant asserts. It is permissible to once again present all the documents submitted with the I-751 and to add more, if this might address the concerns or confusion that led to the denial.

The immigrant can testify (tell their in person) as well as call witnesses, in order to convince the judge that the marriage is the real thing or to overcome some other basis for USCIS's denial.

A judge who is convinced 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 representing the U.S. government and arguing strenuously for their deportation. Your 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 worked with both of 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. It's a long process, but many immigrants have gone through it and won the right to U.S. lawful permanent residence.