If you receive your 2-year green card through your spouse, then it is VERY IMPORTANT TO REMEMBER, that 90 days before the expiration of the your card (90 days short of your 2-year anniversary of getting your card) you can file an I-751 Petition. You have until the expiration of your card to file that I-751. If you fail to file the I-751, for any reason, USCIS will terminate your conditional permanent resident status and likely issue you a Notice to Appear (NTA) to go to immigration court and prove why you should not be deported.
If you miss your 90 day filing window, don’t panic, there are sometimes excuses for filing after that time period, but you must specifically ask USCIS to accept your late-filed I-751 and give them a good reason why. If you don’t ask them to accept your late I-751 and don’t give them a good reason why you filed late, they will likely deny your I-751. If you missed your 90 day window, or preferably before you miss your window, consult with an experienced and preferably Board Certified immigration attorney to review your case and give you advice (like me: https://www.slgattorneysflorida.com/john-gihon.html). Or don’t talk to an attorney and risk wasting your money and time and having your Petition denied because you don’t know what you don’t know about immigration law.
Now that you know who has to file an I-751 and when you have to file your I-751, we can discuss how you file it. There are three different ways to file your I-751 and each depends on your marital status at the time you are ready to file (the 90 day window) and the hardship you would face if you were deported.
Joint I-751 Petitions.
If you are still married and happy and your spouse is cooperative and willing to sign off on the I-751 when you are ready to file, then congratulations you crazy kids, you two just may make it. You also probably have an easier road to having that I-751 granted. You may even be able to avoid another interview with USCIS if you give them enough bonafides of your marriage. Bonafides are those documents and papers with both of your names on them showing that you have co-mingled your lives. Examples are; mortgages, leases, bank accounts, insurance plans, retirement accounts, children, etc. Filing the I-751 while you are still married and with a cooperative spouse is called a Joint I-751 Petition.
If you are still married near your 2 year anniversary, but for whatever reason, your spouse is not willing to help you with your I-751, call an attorney for advice. The catch-22 of this situation is you cannot file a Joint I-751 without your spouse and you cannot file an I-751 by yourself if you are still married.
Waiver I-751 Petitions.
If you are no longer married to your spouse when it is time to file an I-751, you can file something called a Waiver I-751 Petition. You do not have to prove you are still married, but you have to prove that your marriage was entered into in good faith, but like many marriages, it simply did not last. You still need to provide documents showing the bonafides of your marriage.
Finally, if you are not married at the time of filing your I-751, and you believe if you are deported you and your family will suffer extreme hardship, you can file an I-751 based upon extreme hardship. Examples of this situation would be if during your marriage, you or a close family membered suffered a physical injury or were diagnosed with some form of medical condition for which you cannot receive the proper treatment in your home country.
Now once you have filed your I-751, get ready to receive a biometrics notice where you will be required to go and have your fingerprints taken again so they can see if you can still pass a background check. And unless it is a joint petition with your spouse, expect that you will have to go for another interview with USCIS regarding the legitimacy of your marriage.
I-751 Petitions in Immigration Court.
After the interview, USCIS will either grant or deny your I-751. If it is denied, for whatever reason, they should send you to see an immigration judge who can review your case. There is no appeal to the Board of Immigration Appeals or Administrative Appeals Office of USCIS’s denial decision. Also, the immigration judge can only review USCIS’s decision on an I-751, you cannot file a new I-751 before the judge. That means if your Joint I-751 Petition was denied and now you are divorced, you have to go back and file a Waiver I-751 before USCIS. If they grant it, then you can have your removal proceedings terminated and you are almost home free. If USCIS again denies the Petition, then the Immigration Judge can review the second decision.
If USCIS denies all of your I-751 petitions and you do not have a strong case for the immigration judge to overturn those decisions, you will need to look for other avenues of immigration relief. Getting remarried to a new U.S. citizen or LPR can be one way to obtain immigration relief. However, you will have to go through the I-130/I-485 process all over again and you definitely need an attorney to help in this scenario, preferably an experienced and Board Certified one, like me: https://www.slgattorneysflorida.com/john-gihon.html. This is so because USCIS will want the immigration judge to terminate your conditional status from the first marriage before anyone can grant you adjustment of status in the new marriage. Try explaining that to an immigration judge yourself!
If you qualify for other forms of relief in removal proceedings, like cancellation removal for certain nonpermanent residents or asylum, you can apply for those also. Check out our dedicated Removal/Deportation defense page for more information: https://www.slgattorneysflorida.com/deportation-and-removal.html.
Bottom line is, the I-751 Petitioning process is confusing and scary, even for experienced immigration attorneys. If you hire an immigration attorney to help you on your I-751, make sure they know how to help you and can effectively do so for you before USCIS, the immigration court and beyond!
John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant. You can contact John If you need an Orlando Immigration Attorney or your I-751 Petition was denied or if you just need to file one, no matter where you live in the world. http://www.floridacrimmigration.com
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