Tag Archives: I-751

Combined Approval of Form I-751, Petition to Remove Conditions on Residence + Form N-400, Application for Naturalization = A True Success Story

USCIS Field Office in California

A USCIS Field Office in California approved both our client’s Form I-751 petition to remove conditions on residence and Form N-400 application for naturalization in a single naturalization interview, held in early March 2019. With the conditions on his residence now removed, he is set to attend his naturalization oath ceremony and become a U.S. citizen.

Conditional Resident Awaiting I-751 Decision May Consider Filing For Naturalization

In many cases, conditional residents are eligible to file for naturalization before the conditions on their residence are removed and they get the regular, 10-year green card. Persons who are granted marriage-based permanent residence when the marriage to the U.S. citizen petitioner is less than two years old are issued a two-year, conditional green card. To get the conditions removed and maintain lawful permanent residence, the applicant and his spouse must file a joint I-751 petition before the two-year card expires, and no earlier than 90 days before the expiration. There are only three types of waivers (exceptions) to the joint filing requirement.

Continuous residence is one eligibility requirement for naturalization. You must reside continuously in the U.S. for at least 5 years as a permanent resident at the time you file your naturalization application. An exception is if you are a qualified spouse of a U.S. citizen, in which case your continuous residence must be at least 3 years at the time you file for naturalization. Continuous residence for naturalization purposes begins on the start date of your permanent residence, even if it is conditional.

As of June 2018, USCIS began issuing Receipt Notices for I-751 petitions that automatically extend the conditional resident status for 18 months past the expiration date of the two-year card. Previously, the extension was for 12 months, after which the person would need to obtain a temporary I-551 stamp (evidence of conditional residence) at a local USCIS office. The change was made to accommodate longer processing times for I-751s and to allow conditional residents to automatically keep their lawful status and maintain work and travel authorization in the interim.

Naturalization Interview Scheduled Before Conditions Removed

Our client’s naturalization interview was scheduled before he received a decision on the Form I-751 petition. At the naturalization interview, the USCIS officer exercised his authority to approve the I-751 even though it was still sitting at a USCIS Service Center awaiting adjudication. This cleared the way for the conditional resident to become a U.S. citizen.

Filing of Form I-751 Petition

Although both the Form N-400 and Form I-751 may be pending at the same time, the I-751 must always be filed first. A conditional resident may not become a naturalized U.S. citizen until the I-751 petition is first approved.

In December 2017, we filed a timely, joint Form I-751 petition with the USCIS California Service Center in Laguna Niguel, California. To demonstrate the conditional resident entered into and continued to have a good faith marriage with his U.S. citizen spouse, we submitted affidavits describing their relationship, shared car insurance policy, joint bank account and credit card account statements, and evidence of their home ownership.

The I-751 was initially transferred from the California Service Center to another USCIS Service Center. In June 2018, we received a Transfer Notice from the Service Center in Arlington, VA stating it was transferring the I-751 back to the California Service Center to speed up processing. Then in December 2018, we received a Transfer Notice from the California Service Center stating it completed a preliminary review of the petition and was transferring the case to the National Benefits Center in Lee’s Summit, MO for adjudication.

Filing of Form N-400 Application

The I-751 had been pending with USCIS for 10 months when the naturalization application was filed. Within three months of receiving the Form N-400, our client received his naturalization interview notice. It did not instruct him to have his U.S. citizen spouse accompany him or to bring evidence of their bona fide marriage. Nonetheless, I counseled him to do so, particularly because USCIS had yet to approve the I-751 petition and lift the conditions on his residence.

Attorney Appearance at Out-of-State Naturalization Interview

With our law firm based in Minneapolis, Minnesota, I flew out to California to attend the naturalization interview. My client could have retained local counsel to appear with him, but he insisted on having me there. (U.S. immigration is governed by federal laws, regulations and policies, which allow for representation at a USCIS Field Office by an out-of-state attorney.) 

The naturalization interview started off with his completing and passing the Civics Test and English Test. Then the USCIS officer went through his naturalization application, page by page. 

To prepare for the naturalization interview, my client and I had discussed potential questions about his marriage to the U.S. citizen petitioner, their relationship history, and his U.S. immigration record. Among his concerns was that he had been previously denied entry to the United States as a visitor by the U.S. Customs & Border Protection, after being employed in the country on a temporary worker visa for an extended period. I advised him on how to best respond truthfully to this issue, which did end up being raised by the USCIS officer at the interview.

Naturalization Expected

When the USCIS officer stated he would approve the N-400 application, I reminded him the I-751 petition was still pending. The officer was not aware of this because the file had not been flagged. He agreed to call in the U.S. citizen spouse, who had accompanied us to the Field Office and was seated in the waiting room.

Both the conditional resident and his spouse answered questions and presented documentary evidence on the bona fide nature of their marriage. At the end of the interview, the officer said he would also approve the I-751 petition. Even though he did not have the original I-751 filing,  and did not review the copy we had with us, he favorably adjudicated the petition based on the testimony and evidence presented.

A day after the interview, USCIS issued the Form I-797, Approval Notice for the I-751 petition. My client soon sent me an email stating, “When I checked online the status of the N-400 on USCIS website it now says they approved my application, and the next step is to wait for the Oath Ceremony invitation letter in the mail, so looking forward to this very much…Thanks again for all your help. You really made a difference in our lives.

We expect him to be scheduled for a naturalization oath ceremony and to become a U.S. citizen. This is a true success story. 

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Your permanent residence is “conditional” if it is based on a marriage that was less than two years old on the date you were granted this status.  The conditional residence – which begins on the date you lawfully enter the U.S. on an immigrant visa or the date you adjust to permanent residence – is valid for two years.  Failing to file a timely joint Form I-751 petition to remove the conditions results in the automatic termination of your status and subjects you to removal from the U.S.

In the best-case scenario, you and your U.S. citizen or lawful permanent resident (LPR) spouse would file a joint Form I-751 petition to remove the conditions during the 90 days before your two-year green card expires. Then USCIS would approve the petition, remove the conditions, and issue the 10-year green card, based on documentary evidence showing the marriage is bona fide (i.e. entered into with the purpose of establishing a married life, and not for the purpose of obtaining immigration benefits). USCIS may approve the petition without interviewing you, if the documentary evidence is very strong.

But when the marriage is on the rocks, it becomes much harder to file a timely joint I-751 petition and to get the conditions on your residence removed.

Joint Filing When Parties are Separated or Initiated Divorce or Annulment

If the parties are separated but are on relatively good terms, they may submit a joint I-751 petition to the USCIS Service Center. The joint petition must be filed during the 90 days preceding the expiration of the two-year conditional residence. Otherwise, the conditional resident must establish “good cause and extenuating circumstances” for the late filing. Examples of good cause include hospitalization, long term illness, death of a family member, legal or financial problems, having to care for someone, bereavement, serious family emergency, and work commitment, or a family member on active duty with the U.S. military.

The couple must also appear for an in-person interview at a USCIS Field Office, if one is scheduled. In addition, they must meet a four-part test as follows: 1) the marriage was legal where it took place; 2) the marriage has not been terminated; 3) the marriage was not entered into for the purpose of procuring permanent resident status; and 4) no fee (other than to an attorney for filing assistance) was paid for the filing of the Form I-130 or Form I-129F petition.

If USCIS finds that the joint petitioners are legally separated and/or have initiated divorce or annulment proceedings, it will issue a Request for Evidence. The RFE will instruct the conditional resident to submit a copy of the divorce decree or annulment within 87 days, along with a written request to treat the joint petition as a waiver request petition.

If the conditional resident submits the divorce decree or annulment, USCIS will amend the joint petition to indicate it is a waiver request petition based on termination of marriage. USCIS will determine whether there is sufficient evidence to approve the petition on the merits or whether to transfer the case to a Field Office for an in-person interview.

If the conditional resident does not respond to the RFE, or the response does not sufficiently show the marriage has been terminated, USCIS will assess evidence of the bona fides of the marriage. USCIS will decide whether to approve the petition, deny it, or transfer it to a Field Office for an in-person interview.

USCIS may not deny a  joint petition solely because the parties are separated and/or have initiated divorce or annulment proceedings. But legal separation or initiation of divorce or annulment proceedings could suggest that the conditional resident entered into marriage solely for immigration benefits.

As long as the parties prove they married in good faith and the marriage has not been terminated or annulled, USCIS will approve the joint petition (even when the marriage is no longer viable).

Waiver of the Joint Filing Requirement

Conditional residence was introduced in 1986, when Congress passed the Immigration Marriage Fraud Amendment to discourage individuals from entering into sham marriages to circumvent U.S. immigration law. In the 1990’s, Congress passed laws that allow conditional residents, in certain situations, to individually file the I-751 petition so they do not have to stay in  bad or abusive marriages to keep immigrant status.

If the parties file for a divorce or annulment, or the U.S. citizen or LPR spouse is not willing to sign a joint I-751 petition, the conditional resident must then qualify for a waiver of the joint filing requirement.

To receive a waiver of joint filing,  conditional residents must show at least one of the following:

1. They entered the qualifying marriage in good faith, but the marriage was terminated (other than by death), and they are not at fault in failing to file a joint petition.

2. They entered the qualifying marriage in good faith, but during the marriage, they or their conditional resident child was battered or subjected to extreme cruelty committed by the U.S. citizen or permanent resident spouse or parent, and they are not at fault in failing to file a joint petition.

3. Extreme hardship would result if they were removed from the U.S.

Waiver petitions can be filed at any time prior to a final removal order, and do not require proof of “good cause and extenuating circumstances” for a late filing.

Waiver Based on Divorce (Good Faith/Divorce Waiver)

You may file your I-751 by yourself and request a waiver of the joint filing requirement if you are divorced from your U.S. citizen or LPR spouse. When there’s a divorce, an in-person interview at the USCIS Field Office is likely.

Current USCIS policy states that if you file a waiver request petition because you are separated from your spouse or because you are in divorce or annulment proceedings, USCIS will issue a Request for Evidence, giving you 87 days to submit a copy of the divorce decree or annulment.

If you submit the divorce decree or annulment, with a request for a waiver of the joint filing requirement based on termination of marriage, USCIS will continue processing your petition and adjudicate it on the merits.  If you do not submit the divorce decree or annulment, USCIS will deny the waiver request petition and issue a Notice of Termination of Conditional Residence.  USCIS may also serve you with a Notice to Appear (NTA) in removal proceedings before the Immigration Court.

After your divorce becomes final, you may refile your waiver request petition with USCIS if you are not in removal proceedings. Or you may apply for the waiver before the Immigration Court if you are placed in removal proceedings.

A divorce raises suspicion that the marriage was not entered in good faith. To get the waiver request petition approved, you must submit bona fide marriage documents such as birth certificates of your children;  joint mortgages or leases; records of shared bank accounts and credit cards; joint tax returns; photographs of the two of you together and with friends and relatives; correspondences you shared; and affidavits from marriage counselors, therapists, relatives and friends who know about your relationship.

Waiver Based on Battery or Extreme Cruelty by Spouse (Battered Spouse Waiver)

You may individually file the I-751 petition when you are in an abusive marriage that subjects you or your conditional resident child to battery or extreme cruelty perpetuated by the U.S. citizen or LPR spouse. This waiver is available regardless of whether you are still married to or still living with the spouse.

Battery or extreme cruelty is defined as “any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” Acts of violence include “psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution.”

Battery involves physical violence committed against you by your spouse. This can include slapping, shoving, punching or any other infliction of bodily injury.

Extreme cruelty includes nonviolent abuse inflicted on you by your spouse to control or punish you. This includes refusing to jointly file the I-751 unless you give in to unreasonable demands; threatening to report you to authorities and have you deported from the U.S.; threatening to physically harm you;  forbidding you from contacting friends and family; withholding food, transportation and other basic necessities; and searching through or destroying your personal property, including important documents.

To establish battery, you should present “expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel.” You may also submit evidence that you sought an order of protection against the abuser or present photographs of injuries you suffered.

To support claims of extreme cruelty, you should provide objective evidence from professionals recognized as experts in the field; namely, licensed clinical social workers, psychologists, and psychiatrists.

A detailed affidavit describing the abuse you suffered is also helpful.

Waiver Based on Extreme Hardship (Extreme Hardship Waiver)

You may self-petition to remove the conditions on your residence if termination of your permanent residency and removal from the United States would result in extreme hardship. The immigration statute is silent about who must suffer the extreme  hardship, but USCIS normally considers the hardships to the conditional resident and to the children of the marriage.

USCIS considers only factors that arose after you became a conditional permanent resident.  One example is when the political or economic conditions in your home country have deteriorated, and you have publicly criticized its government, since you became a conditional resident.

The term “extreme hardship” is not defined by immigration law. Rather, USCIS generally applies case law regarding applications for suspension of deportation or waivers of inadmissibility. USCIS will consider factors such as your age,  health condition, ability to obtain employment in the home country, length of residence in the U.S. and family ties in the U.S. Other factors include the financial difficulties and emotional hardships you would suffer if you were removed from the U.S., as well as the current political and economic conditions in your home country.

Although the statute itself does not require you to prove a good faith marriage, you must prove extreme hardship if you are removed from the U.S. Such hardship is significantly greater than the hardship that one would ordinarily experience upon being removed from the U.S.

Choosing the Appropriate Form I-751 Waiver

The most recent version of the Form I-751, dated 04/11/13, does not indicate that the waivers are mutually exclusive or that the conditional resident must select only one of the possible grounds for a waiver. Some USCIS officers or immigration judges, however, might instruct you to choose one waiver.

If the U.S. citizen or LPR spouse dies during the two-year conditional period, a separate waiver is available on that basis.  A copy of the death certificate and proof of the bona fide nature of the marriage must be submitted.

Consult an Immigration Attorney

An experienced immigration attorney can help you file a well-documented Form I-751 petition, as well as choose an appropriate waiver, if necessary. The attorney can also prepare you for the interview and attend it with you, if USCIS schedules one.  A denial of petition to remove conditions or a termination of conditional residence subjects you to removal from the U.S., so seeking accurate legal advice is crucial.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Donna S