Guide to Form I-751, Petition to Remove Conditions on Residence

Permanent ResidentThis article explains the requirements and procedures for a conditional resident to file a Form I-751, Petition to Remove Conditions on Residence. Feel free to ask questions or add your thoughts in the below “Comments” section.

1. Introduction

A spouse who immigrates based on marriage to a U.S. citizen or lawful permanent resident will be granted conditional resident (CR) status if, at the time of admission as an immigrant, the marriage is less than two years old.

A child may also become a conditional resident if they immigrate on the basis of an immigrant petition by a U.S. citizen stepparent. If the child immigrates to the U.S. while the marriage is less than two years old, USCIS will grant the child conditional resident status.

If you are a conditional resident, you should file a Form I-751, Petition to Remove Conditions on Residence, during the 90-day period before your two-year “anniversary” of being granted conditional resident status.[1] In other words, file during the 90-day window before your Form I-551, Permanent Resident Card, expires.

This is a guide to the I-751 process. Part 2 describes the requirements. And Part 3 describes the procedures.

2. Requirements for Removal of
the Conditions on Residency

A conditional resident’s status is, in effect, probationary. Conditional residents, while having the same rights and responsibilities of a permanent resident, obtain residency for only two years and must file an I-751 at the end of that two-year period in order to retain residency.

The purpose of the I-751 is to reconfirm that the marriage was valid at its inception. The I-751 is accompanied by evidence of the validity of the marriage. If upon reviewing the I-751 USCIS agrees that the marriage was valid, USCIS may then remove the conditions so that the conditional resident becomes a full permanent resident.[2] Conversely, USCIS may terminate the CR’s legal status if: (a) the marriage has ended in annulment or divorce, (b) USCIS believes that the marriage was fraudulent from its inception, or (c) the conditional resident fails to comply with the proper procedures to file the I-751.

2.1 Proving the Validity of the Marriage

For a marriage to be valid at inception, the parties must have intended at the time of the marriage to live together as husband and wife, not to enter into a sham marriage just for immigration purposes. While the parties’ intent at the moment of the marriage is controlling, evidence from beforehand or afterwards is important to shed light on intent. See below for a list of documents that may be helpful in proving good faith.

2.2 Waivers of the Joint Filing Requirement

If the conditional resident’s relationship with the petitioning spouse has failed during the two-year conditional period, the joint filing requirement can be waived by USCIS if:

  1. the petitioning spouse has died;
  2. the marriage was entered into in good faith but has ended in divorce or annulment;
  3. extreme hardship would otherwise result due to factors which arose subsequent to the conditional resident’s immigration; or
  4. the couple married in good faith but the petitioning spouse physically abused the conditional resident or a child or subjected them to extreme mental cruelty.

Waivers may be filed even after the 90-day filing window for jointly filed petitions.[3] These waivers are separate and independent and multiple grounds should be asserted where applicable.[4]

Petitioning Spouse Has Died

If the petitioning spouse dies during the two-year period, a joint petition is not required.[5] The CR must still establish that the marriage was legal where it took place and was not entered into solely for immigration purposes.

Good Faith Marriage Has Ended in Divorce or Annulment

A request for the good faith marriage waiver cannot be submitted until the divorce or annulment is final.

Still, if parties have initiated legal separation or divorced proceedings, but have not completed them, USCIS may not deny a jointly filed petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings.”[6] USCIS will give the CR 87 days to submit the divorce decree, in which case the petition will be treated as a good faith waiver petition.[7]

Extreme Hardship Due to Factors Arising after CR Status Granted

To obtain a waiver of the joint filing requirement on this basis, the CR must prove extreme hardship that occurred during the period of CR status. The case law is mixed as to whether this waiver can be granted if the marriage was not entered into in good faith.[8]

Spouse Physical Abuse or Extreme Mental Cruelty to the CR or a Child

A waiver of the joint filing requirement is available if the qualifying marriage was entered in good faith but during the marriage the CR spouse or child (regardless of immigration status) was battered by or was the subject of extreme cruelty perpetrated by his or her U.S. citizen spouse and the CR was not at fault in failing to meet the joint petitioning requirements.[9] USCIS has defined this exception as including, but not limited to, “being the victim of any act or threatened act of violence, including any forceful detention which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation … shall be considered acts of violence.”[10]

3. Procedures for the I-751

3.1 Timely Filing

The Form I-751 is filed by mail with the USCIS Service Center with jurisdiction over where the “applicant … live[s].”[11]

If the conditional resident is abroad temporarily, his or her U.S. residence remains unchanged, so the I-751 should be filed with the U.S. Service center with jurisdiction over that state.[12]

 

A jointly filed I-751 must be filed within the 90-day filing period described above. This period may be extended (“tolled”) if one spouse is a member of the Armed Forces in active-duty status.[13]

A jointly filed petition should be signed by the CR and spouse, and accompanied by supporting documentation confirming the validity of the marriage.[14]

Upon proper filing, CR status is extended automatically until such time as USCIS adjudicates the I-751.[15]

3.2 Late Filing

If the I-751 is not filed timely, several consequences follow:

  • The foreign spouse’s conditional resident status is automatically terminated.[16]
  • The USCIS Service Center should route the case to a district office for issuance of a Notice to Appear, thereby initiating removal (deportation) proceedings.[17] But the USCIS Service Center will wait for 60 days after conditional residence status has expired to give the couple “a last chance” to file the I-751.[18]
  • A jointly filed I-751 that is filed late may be considered by USCIS only if the foreign spouse proves to the satisfaction of the USCIS adjudicator “good cause” for failure to file timely.[19] “The law provides for broad discretion as to what constitutes good cause. Some examples of what constitutes good cause may include, but are not limited to: 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.”[20] Forgetting to file alone is not good cause, so explain the circumstances that caused any oversight, such as an illness or other traumatic event. It may also be helpful to explain what prompted the couple to subsequently remember the filing requirement. The adjudicator should take into account how late the filing was.[21] The explanation may be acceptable on its face, but the officer also may request corroborating evidence.[22] If the explanation and evidence in the record are insufficient to determine that there was “good cause” for failure to file timely, the officer may request additional evidence or schedule an interview.[23] If the officer decides that there is no good cause, the petition will be denied.[24]
  • If the jointly filed I-751 is filed prior to the jurisdiction vesting with the immigration judge in removal proceedings and the USCIS “excuses the late filing and approves the petition,” then USCIS “shall restore” the foreign spouse’s permanent residence status.[25]
  • During the period between when the 90-day filing window closes and when USCIS approves then restores permanent resident status, the foreign spouse has no lawful immigration status in the U.S. This is true even though the late filing of a joint I-751 will typically result in issuance of the same receipt as a timely-filed I-751, stating that conditional residence status is extended for one year. The receipt states, “This extension and authorization for employment and travel does not apply to you if your conditional resident status has been terminated.”[26]
  • Since the beneficiary of a late-filed joint I-751 has no lawful immigration status in the U.S., if she departs the U.S. while the late-filed I-751 is pending (or if she has filed the I-751 late while abroad), she is not eligible to return as a permanent resident unless and until that status is restored. Further, while in the U.S. she will accrue unlawful presence in the U.S. until such time as the I-751 is approved.[27] So if she incurs a single 180-day period of unlawful status then departs the U.S., she may be ineligible to return for 3 years unless the I-751 is approved. And if she has incurred a lifetime total of 365 days of unlawful status then departs the U.S., she may be ineligible to return for 10 years unless the I-751 is approved.[28]

3.3 Considerations for Persons Living Abroad Temporarily

There is no requirement that you be physically present in the U.S. at the time the I-751 is filed.[29]

But if your I-751 lists a foreign address, your case will be held by USCIS until you report that you have notified USCIS that you have moved back to the U.S. and a U.S. address is put into the system, at which point it will be moved into the processing queue.[30] The USCIS rationale for the “overseas hold” is that it may not be feasible for a CR living abroad to attend the required biometrics appointment and interview.[31]

To avoid the overseas hold, an applicant should be sure to list a U.S. address. It may be also be important for the I-751 to explain the reason the CR is overseas, demonstrate that CR status has not been abandoned,[32] state that the CR will attend the scheduled biometrics interview and appointment, and request that the case not be subject to the overseas hold.

3.4 Dependent Children

Dependent children who became permanent residents within 90 days of the parent may be included in the joint petition. However, all dependents included in the petition must pay a separate biometrics fee. Dependent children who cannot be included in the joint petition because they did not immigrate within 90 days of the parent or because of the death of the parent may file a separate petition.[33]

3.5 Documents to File

A jointly filed petition should include:

  1. Filing fee for I-751: $505
  2. Biometrics fee: $85. (Each conditional resident dependent must also submit this biometrics fee, regardless of age).
  3. Form G-28, Notice of Entry of Appearance as Attorney (for each spouse, if filing a joint petition)
  4. Form I-751, Petition to Remove Conditions on Residence
  5. Form I-551, Permanent Resident Card (copy of front and back) (including for any included children)
  6. Evidence that the marriage was not entered into for the purpose of evading the immigration laws of the United States. Documents which may be submitted include but are not limited to: (1) joint ownership of property, (2) joint tenancy of a common residence, (3) commingling of financial resources, (4) birth certificates for children born of the marriage, and (5) affidavits of persons having knowledge of the bona fide marital relationship.[34]
  7. Criminal history records if you have ever inside or outside the U.S. been arrested or detained by any law enforcement officer, whether or not charges were filed, or been convicted or placed in an alternative sentencing program or rehabilitation program.[35]
  8. Additional documents are required for persons who are (a) residing overseas pursuant to military or Government orders, (b) seeking to waive the joint filing requirement, or (c) children filing separately from their parents.

3.6 Receipt Notice and Tracking Case Status

In recognition of the lengthy delays in obtaining a decision on an Form I-751, Petition to Remove the Conditions on Residence, USCIS issues a filing receipt (in duplicate to the lawyer and conditional resident) that extends the conditional resident’s status for a full year beyond the date shown on the I-551. The receipt, accompanied by the I-551 and an unexpired foreign passport, is valid for entry to the U.S. following travel abroad. Also, the receipt, accompanied by the expired I-551, is evidence of employment authorization in the United States which can be provided to an employer for purposes of proving eligibility to work. If USCIS does not adjudicate the I-751 within that year, USCIS is supposed to expedite adjudication of the case.

The status of an I-751 can be tracked online at www.uscis.gov . You also have an option to sign up for email or SMS status updates. Please note that for I-751s, USCIS tracks cases by the “application number” shown on the biometrics appointment notice, not by the “receipt number” shown on the receipt notice (which if tracked just shows “your case cannot be found”). Also please note that the I-751 will be shown in the system as a “CRI89 Petition to Remove Conditions of Permanent Residence.”

3.7 Biometrics

You will receive an appointment notice to visit a USCIS Application Support Center after you have filed Form I-751 to have your biometrics (photo, signature, fingerprints) electronically captured.[36]

The photograph, signature and index finger print will later be used to generate the new I-551 when the Form I-751 is approved.

The ten fingerprints are taken for the purpose of conducting a criminal background check for applicants between the ages of 14 to 79.

3.8 Interview

The USCIS regional center where the I-751 is filed may in its discretion waive the interview. USCIS will do so if satisfied based on the evidence filed with your I-751 that your marriage was entered into in good faith.[37] (This is especially true for spouses of active U.S. military personnel stationed overseas). This is an important reason to file a complete and well-prepared I-751 package.

Otherwise, your I-751 will be forwarded to a local USCIS office and you will receive a notice requiring appearance at a local USCIS office for an interview. (It’s technically possible for the local office to decide to waive the interview too.[38]) Failure to attend the interview may result in termination of the conditional resident’s status and the commencement of removal (i.e., deportation) proceedings.

3.9 Travel Abroad while the I-751 Is Pending

To be admitted to the U.S. during the period after the I-551 has expired and before the I-751 is adjudicated, you should carry your passport, expired I-551, and the unexpired I-751 receipt issued by USCIS.

The “grounds of inadmissibility” apply, just as they do for any permanent resident seeking to enter the U.S. In other words, exercise caution before leaving the U.S. because upon return you may be referred by the U.S. Customs and Border Protection (CBP) officer at the airport (or other port of entry) to an Immigration Judge for a removal (deportation) hearing if the officer determines you are subject to removal, such as for having committed a crime, having abandoned your permanent resident status by making non-temporary trips abroad, etc.[39]

If you are living abroad temporarily, you should consider the utility of applying for a reentry permit to avoid a determination by the U.S. Customs and Border Protection inspecting officer at the port of entry that you are inadmissible on the basis of having abandoned your CR status.

Finally, if the I-751 is denied while you are abroad, you may have trouble getting back in and may be referred to an Immigration Judge for removal a removal hearing.

Please discuss with our firm any international travel plans before finalizing them.

3.10 What if the I-751 Is Still Pending More Than One Year After the I-551 Has Expired?

As mentioned above, in recognition of the lengthy delays in obtaining a decision on a Form I-751, USCIS issues a Form I-797 filing receipt that extends a conditional resident’s status for a full year beyond the date shown on the I-551. If the I-751 is still pending after that year has passed, then the applicant should obtain additional evidence of CR status.

Take the I-797 receipt, the I-551 card, and an unexpired passport to the local USCIS district office to request a new stamp in the passport to indicate extension of conditional resident status for an additional year.[40] You may be required to make an appointment using the USCIS InfoPass system.

3.11 Change of Address while the I-751 is Pending

If you move prior to receiving the I-551, please tell our firm so we can notify USCIS of your new address. (USCIS does not allow the Post Office to forward the I-551 from your old address to a new address).

3.12 Eligibility for Naturalization before Approval of the I-751

You may file a Form N-400, Application for Naturalization, notwithstanding the fact that your I-751 filing period has not started and notwithstanding the fact that your I-751 has not yet been filed or is pending.[41] If you have already filed your I-751, notify the USCIS office handling your naturalization case so that the I-751 can be adjudicated at the same time as the naturalization application.[42]

A key requirement for naturalization is the continuous residence requirement. For most naturalization applicants, the requirement is that you have resided in the U.S. continuously for 4 years and 9 months after gaining CR or LPR status. However, that requirement is reduced to 2 years and 9 months if during that period you have lived in the U.S. with your citizen spouse. There is also a special provision allowing expedited naturalization with no continuous residence requirement for spouses of U.S. citizens employed abroad by U.S. companies or their subsidiaries.

3.13 Decision

If USCIS approves the I-751, it will send the conditional resident notice of that fact. In the alternative, the Service Center or local USCIS office may issue a written request for additional evidence.[43] Failure to respond would lead to a denial due to abandonment.

In the event that USCIS intends to deny a jointly filed I-751, USCIS must first inform the conditional resident of its intention and of any derogatory evidence upon which its negative conclusions are based. The couple may then submit rebuttal evidence, which USCIS must consider.

If USCIS ultimately denies the I-751, it will give the conditional resident written notice of the grounds for the denial, with instructions to surrender their permanent resident card. CR status terminates as of the date of the denial.[44]

There is no appeal from a denial,[45] although a motion to reopen may be possible. Following a denial, USCIS may then initiate removal proceedings. In such proceedings, the Department of Homeland Security bears the burden of proof that the marriage was not entered into in good faith, but the noncitizen bears the burden of showing eligibility for a waiver or other discretionary relief.[46]

3.14 Issuance of the New Permanent Resident Card

Upon approval of the I-751, the conditional resident becomes a full permanent resident. USCIS will manufacture the I-551 (i.e., “green card”). It will be mailed to you at the address shown on the I-751. This must be a U.S. address.[47]

When you get the new card, review it carefully to ensure all data on the card is accurate. In particular, please note:

new green card

1. Under the word “Category,” your old card should have read CR1, CR2, CR6, or CR7. In the new card, the letters CR (conditional resident) should have been changed to IR (immediate relative).

2. Permanent resident status lasts indefinitely. Nonetheless, the new card itself will expire and need to be renewed if you do not apply for naturalization and become a U.S. citizen beforehand:

  • If you are over age 14, the card will be valid for 10 years.
  • If you are under age 14, within 30 days of reaching age 14 you must apply for a new card (unless you are temporarily outside the U.S., in which case you must apply for a new card within 30 days of return).

In the unlikely event that you do not receive the card within about 4 weeks after the I-751 is approved, feel free to contact our firm so that we can follow up with USCIS on your behalf. In addition, when you receive the card, please send us a copy for your file.

4. Conclusion

Approval of the I-751 releases the applicant from conditional to full permanent resident status. Other rights and obligations as a permanent resident remain the same. Please see our article, “Rights and Obligations of Lawful Permanent Residents” ( http://lawandborder.com/?p=2134 ), for more information about topics such as:

  • Alien registration and address change requirements
  • Sponsor’s address change requirement
  • How to avoid loss of LPR status
  • Naturalization
  • Helping family members to immigrate

Endnotes

  1. INA § 216(d)(2); 8 C.F.R. § 216.4(a)(1).
  2. More specifically, USCIS shall determine whether: (a) the marriage was entered into in accordance with the laws of the place where the marriage took place; (b) the qualifying marriage has been annulled or terminated (other than through death of the spouse); (c) the marriage was entered into for the purpose of procuring permanent resident status for the alien; and (d) A fee or other consideration was provided (other than to an attorney) in connection with the petition through which the alien obtained conditional permanent residency. INA § 216(d)(1); 8 C.F.R. § 216.4(c).
  3. Matter of Stowers, 22 I. Y& N. Dec. 605 (BIA 1999). But if a jointly filed petition is denied, an extreme hardship waiver cannot be filed. Vasquez v. Holder, 602 F.3d 1003, 1008-19 (9th Cir. 2010)
  4. Matter of Balsillie, 20 I. & N. Dec. 486 (BIA 1992); Matter of Anderson, 20 I. & N. Dec. 888 (BIA 1994) (IJ has no authority to review request for waiver where respondent asserted a different basis for the waiver before INS).
  5. Matter of Rose, 25 I. & N. Dec. 181 (BIA 2010).
  6. Memo, Neufeld, Acting Assoc. Director, USCIS, I-751 Filed Prior to Termination of Marriage (Apr. 3, 2009) at 2, published on AILA InfoNet at Doc. No. 09072166.
  7. Id.
  8. Waggoner v. Gonzales, 488 F.3d 632, 634–38 (5th Cir. 2007) (good faith not required); Singh v. Holder, 591 F.3d 1190, 1197–99 (9th Cir. 2010) (implies that good faith not required). But see Velazquez v. INS, 876 F.Supp.1071, 1075–78 (D. Minn. 1995) (cannot use provision to waive sham marriage).
  9. INA § 216(c)(4)(C). This is the same standard as the self-petition process for classification as the battered spouse or child of an LPR or U.S. citizen created by the Violence Against Women Act of 1994, INA §§ 201(b)(2)(A)(i) and 204(a)(1)(A)(ii).
  10. 8 C.F.R. § 216.5(e)(3)(i).
  11. USCIS, I-751, Petition to Remove Conditions on Residence (May 5, 2015), http://www.uscis.gov/i-751. )
  12. See AILA-SCOPS Q&A (Sept. 17, 2008), AILA Infonet Doc. 08092369 (If the conditional resident is abroad, the I-751 “should be filed with the Service Center having jurisdiction over the … last place of residence in the U.S.”
  13. INA § 216(g).
  14. 8 C.F.R. § 216.4(a)(1).
  15. 8 C.F.R. § 216.4(a)(1).
  16. 8 C.F.R. § 216.4(a)(6).
  17. 8 C.F.R. § 216.4(a)(6); AFM ch. 25.1(g)(4).
  18. AFM ch. 25.1(g)(4).
  19. INA § 216(d)(2)(B). This does not apply to cases seeking a waiver of the joint filing requirement.
  20. AFM ch. 25.1(g)(6).
  21. AFM ch. 25.1(g)(6).
  22. AFM ch. 25.1(g)(6).
  23. AFM ch. 25.1(g)(6).
  24. AFM ch. 25.1(g)(6).
  25. 8 C.F.R. § 216.4(a)(6). Consistent with that regulation, the USCIS California Service Center states that the “good cause” determination is made only when the I-751 is adjudicated, not prior to issuance of the I-751 receipt notice. California Service Center Quarterly Stakeholder Engagement Meeting: AILA CSC Liaison Committee Notes (Nov. 11, 2011), Infonet Doc. No. 12021547.
  26. It has been argued that USCIS acceptance of a late-filed joint I-751 restores the foreign spouse’s conditional residence status. See e.g. Michael E. Piston, Why You Don’t Dare Go Home Again—The Insidious Impact of Unlawful Presence, Immigration & Nationality Law Handbook 523 (2009-10 ed.). This argument relies on 8 C.F.R. § 216.4(a), which states in part that “Upon receipt of a properly filed Form I-751, the alien’s conditional permanent resident status shall be extended automatically, if necessary, until such time as the director has adjudicated the petition.” The term “proper filing” refers to the requirements to file the correct form, sign it, pay the fees, and include the required initial evidence, but not the timeliness requirement. See 8 C.F.R. § 103.2(a)(7)(i). The problem with this argument is that it contradicts the clear rule in 8 C.F.R. § 216.4(a)(6) that conditional resident status is only “restored” once the late filing is excused and the petition is approved.
  27. INS Memorandum, P. Virtue, “Section 212(a)(9)(b) Relating to Unlawful Presence” (Sept. 19, 1997), published on AILA InfoNet at Doc. No. 97092240 (posted Sept. 19, 1997) (When permanent resident status “has been restored, the alien will not be considered to have accrued any periods of unlawful presence.”); AFM ch. 30.1(d).
  28. Id.
  29. USCIS, Removing Conditions on Permanent Residence Based on Marriage, http://snipurl.com/1t5tuast , last visited Nov. 5, 2007; 8 CFR §216.4(a)(4) (“A petition may be filed regardless of whether the alien is physically present in the United States. However, if the alien is outside the United States at the time of filing, he or she must return to the United States, with his or her spouse and dependent children, to comply with the interview requirements contained in the Act. Furthermore, if the documentation submitted in support of the petition includes affidavits of third parties having knowledge of the bona fides of the marital relationship, the petitioner must arrange for the affiants to be present at the interview, at no expense to the government. Once the petition has been properly filed, the alien may travel outside the United States and return if in possession of documentation as set forth in § 211.1(b)(1) of this chapter, provided the alien and the petitioning spouse comply with the interview requirements described in § 216.4(b). An alien who is not physically present in the United States during the filing period but subsequently applies for admission to the United States shall be processed in accordance with § 235.11 of this chapter [re: admission of CRs].”)
  30. AFM 25.1(g)(4)(C). For military cases, there is an exception to the “overseas hold.” You must have a valid APO or FPO address. See also AILA-SCOPS Q & A September 17, 2008; Report of ISD Teleconference, AILA InfoNet Doc. No. 00101702 (posted Oct. 17, 2000) (“In response to our question regarding I-751 cases where a foreign address is provided by the petitioner and beneficiary and the petition is automatically placed on an overseas hold, INS has stated that if a U.S. address is listed on the form (c/o another party), INS will be able to adjudicate the I-751. Therefore, members are advised to file all I-751 petitions that they don’t want placed on an overseas hold with a U.S. address.”).
  31. USCIS American Immigration Lawyers Association (AILA) Meeting, March 19, 2009 at p.6-7. (“Petitions that indicate that the CR is temporarily overseas, but not on government/military orders, are reviewed for information concerning the reason they are overseas and when they intend to return to the U.S. I-751 petitions require ten-print fingerprints as well as biometrics and identity verification. Once the biometric requirement is met, an officer will review the application for eligibility. If the CR is deemed eligible for removal of conditions, an I-551 card will be issued; all I-551 cards must be mailed to a U.S. address provided by the CR. If the CR does not comply with the biometric requirement, the petition will be denied in accordance with 8 CFR §103.2(b)(13)(ii)).
  32. A reentry permit may be helpful in this regard.
  33. 8 C.F.R. § 216.4(a)(2), (4); Form I-751 Instructions (Rev. Dec. 30, 2009).
  34. See generally, Gary Chodorow, Top 10 List: How to Document Your Valid Relationship for Immigration Purposes (Oct. 8, 2009), http://lawandborder.com/?p=602 .
  35. Unless a traffic incident was alcohol or drug related, you do not need to submit documentation for traffic fines and incidents that did not involve an actual arrest if the only penalty was a fine of less than $500 and/or points on your driver’s license. Form I-751 Instructions 4 (Apr. 11, 2013).
  36. USCIS, Update: New Biometrics Process for Conditional Permanent Residents, Feb. 28, 2007, AILA Infonet Doc. No. 07030261.
  37. 8 C.F.R. § 216.4(b)(1) (2007); USCIS, Removing Conditions on Permanent Residence Based on Marriage, http://snipurl.com/1t5tuast, last visited Nov. 5, 2007.
  38. 8 C.F.R. § 216.4(b)(1).
  39. See generally Gary Chodorow, Ground of Inadmissibility under U.S. Immigration Law, http://lawandborder.com/grounds-of-inadmissibility/ .
  40. William R. Yates, Acting Assoc. Director for Operations, BCIS, Extension of Status for Conditional Residents with Pending Forms I-751, Petition to Remove Conditions on Residence, Dec. 2, 2003, AILA Infonet Doc. No. 03120940; Questions and Answers: USCIS Field Operations Directorate-AILA Liaison Meeting, October 25, 2011, AILA Infonet Doc No. 12011061.
  41. 8 C.F.R. § 216.1.
  42. USCIS Honolulu, Naturalization FAQ Sheet for Spouse of a U.S. Citizen Regularly Stationed Abroad: The Honolulu Process (May 10, 2004), http://tokyo.usembassy.gov/pdfs/wwwf319b.pdf .
  43. AILA National—VSC Liaison Conference Call, May 30, 2007, AILA Infonet Doc. No. 07061171; I-751 Instructions (Rev. 07/30/07) at 4 (“We may request more information or evidence.”)
  44. 8 C.F.R. § 214.6(d)(2).
  45. 8 C.F.R. § 214.6(d)(2). Still, it may be possible to ask USCIS to certify the case to the Administrative Appeals Unit. See, e.g., Matter of __, File No.A40-418-687, 13 Immigr. Rep. B2-102 (AAU June 20, 1994); Matter of __, File No.A42-135-845, 11 Immigr. Rep. B2-54 (AAU Dec. 29, 1992).
  46. See Opinion by Grover Joseph Rees III, INS General Counsel (Dec. 3, 1991), reproduced in 69 Interpreter Releases 627 (May 18, 1992).
  47. AILA-SCOPS Q & A September 17, 2008.

31 Replies to “Guide to Form I-751, Petition to Remove Conditions on Residence”

  1. Dear Gary,

    My husband is a US citizen. We got married in May 2012, and I received my temporary green card in late October 2012. In September 2013 I went to my home country in Europe, where I am currently, and I am not sure how long I will stay due to some family health and family business issues. Hopefully I will be able to go back to the USA by at the latest January 2014, but I am not sure if I will have to return to Europe again (Maybe March to June 2014). My questions are:

    1. Will my absences matter for my Form I-751, Petition to Remove the Conditions on Residence, or for naturalization? (I read somewhere that for naturalization you need to be in the USA for 1 year straight. I was not.)

    2. When applying for I-751 they said they might call you for an interview. If so, when will it likely be?

    3. In the USA, I have my own business which I currently manage from Europe. I am renting an apartment with my husband in the U.S., and my life is there (drivers license, I do taxes every year, phone, bank, personal items everything). My husband is coming to visit me here next month. But when apply for I-751 do we just need to fill out the form or send them some other proof like we had to for the first interview? If so, and in this case since I am temporarily abroad, what would that be? Would that be our communication such as emails, messages, airplane tickets and what else?

    4. I found this statement on the government website, and my question is, is this a requirement just for naturalization or also when applying for I-751? “Living within the state or USCIS district with jurisdiction over the applicant’s place of residence for at least three months prior to the date of filing.”

    5. Overall both for I-751 and naturalization I figured that as long as you are half of the time (in my case 3 years) in the USA and for naturalization 3 months before applying for naturalization, and you have your life in the USA, as in my case, that should be fine with the immigration law. Is that right?

    Thank you so so much!

    Best,

    Ania Precina

    1. Ania,

      To file an I-751, it doesn’t matter how long you’ve spent abroad in the past, and there is no requirement that you spend 1 year straight in the U.S. But if you’re still abroad when you file, see Part 3 of the Guide related to considerations for persons living temporarily abroad, which discusses the “overseas hold.”

      The above I-751 Guide should also address your other questions such as timing of the interview and what supporting documents to file.

      More generally, for permanent residents who stay abroad for significant periods of time, see the following articles:

      * Your Green Card Is at Risk if You Stay Outside the U.S. over 6 Months
      * Guide to Reentry Permits
      * Can a Permanent Resident Who’s Been Abroad for 6 Months Apply for U.S. Citizenship?

      Unfortunately, as you can see from the above citizenship article, the rules aren’t as simple as “as long as you are half of the time … in the USA … that should be fine.”

  2. I received my 2-year conditional resident card about a month ago and will be celebrate my 2-year wedding anniversary in a month. When should my wife and I file the Form I-751 to get the 10-year permanent resident card?

    1. Abraham:

      The window for filing the I-751 is the 90-day period before your conditional resident card expires (not the window before your two-year wedding anniversary).

  3. Dear Mr. Chodorow,

    I am a US Citizen residing in Australia with my Australian husband and our daughter. My husband received his GC November 30, 2012 when we were back in the US looking for work. We were unable to find employment and returned to Australia where we have been since January 2013. His GC expires November 30, 2014 and we are not prepared to relocate yet due to the US job market (husband has been out of US for 18 months with no re-entry permit). Shall we still file our I-751 next month and the SB-1 as well, or forgo the entire process and begin again when we are ready to move back in a few years? Thank you.

  4. Ivana,

    You’re asking good questions.

    Your husband’s green card is not a valid entry document after he’s been abroad for 1 year straight. So applyling for an SB-1 returning resident visa is possible, but it’s hard to qualify–the stay abroad has to be “beyond” your husband’s “control.” Ordinarily, just not being able to find a U.S. job isn’t a good enough reason, especially since his odds of finding a U.S. job would increase if he were in the U.S. for the job search. Another possibility is to get to the U.S. border or a U.S. airport and apply to U.S. Customs and Border Protection for a waiver of the entry document.

    But you may not want to fight your way back to the U.S. (or file the I-751) if you plan on living in Australia for a few years anyway.

    All I’m doing is laying out some of the issues for you. The standard advice is to meet with a qualified U.S. immigration lawyer to help you figure out a strategy that best matches your personal factual situation and goals.

  5. Thank you Gary for all your help and information. So shall we not file our US taxes jointly then since he “abandoned” his LPR? Our can we file $0 tax return in the US? This is far too confusing.

    Regards,
    Ivana

    1. Ivana,

      Another excellent question. While your husband may have abandoned his LPR status for immigration purposes, the tax rules may be different: his tax obligations may continue until there is an administrative determination by the government that his status has terminated. Discuss the tax rules with your tax adviser.

      One way that a immigration law firm like ours can help clients is to file the Form I-407, Abandonment of LPR Status, with the government, thereby terminating LPR status for immigration and tax purposes. This can also facilitate your husband’s entry to the U.S. under the visa waiver program.

  6. Our CR189 was filed with USCIS VSC on December 5. That’s nearly 8 months ago. No RFEs, no updates. E-request shows it is pending a decision. Is there a call for concern since it is outside the normal processing time?

    1. DD77,

      USCIS Vermont Service Center shows that processing times for I-751s are 6 months. So your case is outside normal processing time. If I were the lawyer, I would likely contact the USCIS National Customer Service Center to see if there’s an update and, if not, to ask that the Center send a follow-up request (called a Service Request Management Tool ticket) to the VSC. USCIS’ goal is to respond to such follow-up requests within 15 days.

      1. One concern about the delay is that my driver’s license expires in March, at the same time that my 1-year extension of CR status expires.

        1. DD77,

          As mentioned above in Part 3.9, in recognition of the lengthy delays in obtaining a decision on a Form I-751, USCIS issues a Form I-797 filing receipt that extends a conditional resident’s status for a full year beyond the date shown on the I-551. If the I-751 is still pending after that year has passed, then the applicant should obtain additional evidence of CR status.

          Take the I-797 receipt, the I—551 card, and an unexpired passport to the local USCIS district office to request a new stamp in the passport to indicate extension of conditional resident status for an additional year. An appointment may be required.

          You should be able to use that to extend your driver’s license.

  7. Hello Gary,
    In 1985 I was convicted for a 3rd degree felony (aggregated theft). After 29 years I decided to clear my charge. Hired a lawyer. The court determined to unsatisfactorily dismiss my case because I was not present when the probation time was given. Then we got married, went to the first interview with a lawyer and everything went fine. Now we are sending the I 751 form but I am weary that this old case might in some way become a problem and my permanent residency denied. My marriage is legal and wonderful.

  8. I applied for I-751 on 4th october 2011 ( Got my CR in October 2009 )under waiver of good faith marriage as i was in divorce proceedings.On the interview ( September 2012) the officer asked for divorce decree and “one more document” to be submitted within 84 days.I submitted the other document but submitted the divorce decree in june 2013 ,when my divorce got finalized.Constantly updated about my divorce case to the IO.But now it has been more than a year that I submitted mmy divorce decree and have heard nothing form them.Only response I get is that “your case is under pending consideration”.In October this year i.e 2014 it will be 5 years for me staying in USA.I am planning to file N 400 ,so that it may force or trigger USCIS to adjudicate my pending I- 751.
    What is your best advise Sir,should I go ahead and file N 400 or just keep waiting for the results of pending 751,I have not done any crime or other such things.

    1. Gurvinder,

      My advice is to hire a competent immigration lawyer. You don’t want to file the N-400 and take the risk (even if small) that you could go to the naturalization interview only to be informed that your I-751 is not approvable and you are subject to deportation. The lawyer can help follow up on the I-751, which appears to remain pending long after normal processing times. Hopefully you’re right that the I-751 is approvable with just a nudge.

  9. Dear Mr. Chodorow,

    You mentioned that the I-751 has a receipt number which is different from the ASC receipt number. Once I file my I-751, I’m worried that I won’t be able to track my case, including whether or not the ASC notice has ever been issued. This concerns me because I’ve heard of people being denied for failing to appear for fingerprint notices, and also because I have no idea what length of time is reasonable to wait for an ASC, or if they will accept my previous fingerprints.

    Once I get my I-751 receipt, is there no way to track the case while waiting for the ASC notice to arrive? Or is that something that requires an attorney? Thank you in advance for your help.

    Regards,
    Mike

    1. For I-751s, USCIS tracks cases by the “application number” shown on the biometrics appointment notice, not by the “receipt number” shown on the receipt notice (which if tracked just shows “your case cannot be found”). If you’re concerned that the biometrics appointment notice has been issued but not received, you always have the option to call the USCIS National Customer Service Center, which can track your case by the receipt number.

  10. Dear Mr. Chodorow,

    I filed a Form I-751, Petition to Remove the Conditions on Residence, jointly with my US citizen wife on August 18, 2013. It has been almost 16 months since then, and I have not heard anything. My online case status says “initial review.”I’ve had two InfoPass appointments at the local USCIS office and am about to have a third. Each the officer givves me 2 or 3-month extensions only. Why is it taking so long when the USCIS website states that I-751s are taking 6 months at the California Service Center? Should I be concerned?

    Markus

    1. Markus,

      Freud, who famously interpreted symbols in dreams, is reputed to have said, “Sometimes a cigar is just a cigar,” meaning that sometimes things should be taken at face value not as symbols of other things.

      In your case, the delayed adjudication of the I-751 may or may not be a sign that something is wrong with the case. One approach would be to, during your next InfoPass appointment, bring a printout of the USCIS processing times for the California Service Center to show that your case is beyond the regular processing time. You can ask the officer to file an inquiry with the Service Center about this. In the alternative, you can make a similar request now by phone with the USCIS National Customer Service Center. Maybe the best option is to consult with our law firm or another competent immigration attorney, who can review the I-751 and the facts of your case to provide an opinion about whether there may be a problem in the case or USCIS just needs to be pushed to wrap it up.

  11. Hi, I entered into my marriage with good faith but my husband wants to divorce me. I filed the I-751, and the USCIS gave me a receipt notice extenidng my conditional resident status for one year. I also attended the biometrics appointment to be fingerprinted. What’s the next step?

    1. Nabila,

      I strongly recommend you consult with our law firm or another competent immigration attorney.

      To begin to answer your question about what’s the next part of the procedure, I’d need to understand on what basis you filed the I-751 and what’s the status of the divorce proceedings.

      For example, if you filed the I-751 jointly with your husband (with his signature), and divorce proceedings have been initiated, the pending proceedings cannot be the sole reason for USCIS to deny the jointly filed petition. Instead, upon learning of the pending proceedings, USCIS should give you a notice providing you 87 days to submit the divorce decree. If you can timely provide the divorce decree, then your previously filed I-751 will be treated as if had had been filed under the “waiver” provision for cases where the marriage was in good faither but ended in divorce. See Memo, Neufeld, Acting Assoc. Director, USCIS, I-751 Filed Prior to Termination of Marriage (Apr. 3, 2009) at 2, published on AILA InfoNet at Doc. No. 09072166. The situation becomes more complicated if you are unable to provide the divorce decree on a timely basis.

  12. Hi Gary,
    I’m just confused about my conditional GC I-751, after I finished sending my requirements to removed my conditional status, they sent me another letter and it notify me that they relocated to the USCIS where I live for adjudication…I don’t understand it,should I worry about this?
    Thanks so much..

  13. I sent my I-751 packet to Vermont service center and they received it last wednesday. Today I was checking the US IS website and read that SC residents should foward their I-751 to California service center. Do they send the package to the right service center or foward back to me? Should I wait? I’m confused and don’t know water to do.

  14. I received my 1 year extension letter after filing my I-751 and have already finished my biometrics appointment. I was planning on traveling abroad for right at 3 months this winter. Will this be a problem with the I-751 still pending?

    1. Christal,

      You may want to have a lawyer assess the strength of your I-751 before you depart the U.S. The reason is that if the I-751 is denied your conditional resident status is terminated. If this happens while you are outside the United States, you are not entitled to be readmitted. As a result, you lose the opportunity to have the I-751 denial reviewed by an Immigration Judge, and you may be subject to expedited removal if you attempt to enter the country. See Edwards v. U.S. Immigration and Customs Enforcement Div. of Dept. of Homeland Sec., 2011 WL 5077775 (D. Minn. 2011), report and recommendation adopted, 2011 WL 5077619 (D. Minn. 2011) (Court lacks jurisdiction to review expedited removal in the case of an individual who applied for admission after his I-751 was denied). Al Khedri v. Sedlock, 2009 WL 3380681 (N.D. Ill. 2009) (same).

  15. Hi Gary,
    I am a conditional permanent resident, Me and my spouse entered into my marriage with good faith, now we both want divorce as our marriage is not working out. My spouse is planning to divorce me so do I. Does it matter who file for the divorce?

    I am hearing from people that if I file for divorce, I am not eligible to apply for i751 with waiver for joint filing or chances of getting approved is zero and I will have to leave US but If my spouse divorce me then I can apply for i751and get approved as no fault divorce to remove my condition. How valid is this statement?

    I am confused please advise me.

  16. For the fingerprinting, does my wife need to accompany me?

    My green card is through marriage to my wife and I’ve submitted my I-751 and received notice for fingerprinting. Will USCIS capture fingerprints for both me and my wife, or or only me i.e. do both of us need to appear at fingerprint appointment?

Comments are closed.