- 1. Introduction
- 2. Requirements
- 3. Procedures for the I-751
- 3.1 Timely Filing
- 3.2 Late Filing
- 3.3 Considerations for Persons Living Abroad Temporarily
- 3.4 Dependent Children
- 3.5 Documents to File
- 3.6 Receipt Notice, Processing Times, and Tracking Case Status
- 3.7 Biometrics
- 3.8 Interview
- 3.9 Travel Abroad while the I-751 Is Pending
- 3.10 What if the I-751 Is Still Pending More Than 18 Months After the I-551 Has Expired?
- 3.11 Change of Address while the I-751 is Pending
- 3.12 Eligibility for Naturalization before Approval of the I-751
- 3.13 If You Are in Divorce or Annulment Proceedings
- 3.14 Decision
- 3.15 Following Approval
- 4. Related Issues
- 5. Conclusion
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.
Similarly, a child or stepchild who immigrates to the U.S. on the basis of such a marriage will be granted CR status if the marriage is less than two years old.
CR status expires two years from the date it was granted. If you immigrated by applying for an immigrant visa at a U.S. Embassy or Consulate abroad, your CR status was granted on the date you were admitted to the country by U.S. Customs and Border Protection. If you immigrated by filing with USCIS a Form I-485, Application to Adjust Status, your CR status was granted on the day your Form I-485 was approved. The expiration date of your CR status will be shown on your Form I-551, Permanent Resident Card (i.e., green card).
The statute requires that a conditional resident file a Form I-751, Petition to Remove Conditions on Residence, during the 90-day period before the two-year “anniversary” of being granted CR status. In other words, file during the 90-day window before your Form I-551, Permanent Resident Card, expires.
CR status is, in effect, probationary. The statutory requirement that CRs file I-751s is based on Congress’ concern about sham marriages entered into for the sole purpose of obtaining permanent residence. The I-751 requires CRs to prove they are still together with their spouse or, if not, provide a good reason why not.
Failure to timely file a Form I-751 or failure to appear for a scheduled personal interview at a USCIS office can lead to termination of CR status. Also, denial of a Form I-751 will lead to termination of CR status.
This article is a guide to the I-751 process. Part 2 describes the requirements. Part 3 describes the procedures. Part 4 discusses other issues that may arise during the I-751 process.
There are a few different ways to remove the conditions on residence, depending on the status of the conditional resident’s marriage at the time the waiver is filed:
- If the couple is still married, the I-751 must be filed “jointly.” This means that the U.S. citizen or LPR spouse must sign the I-751 and must attend an interview on the I-751, if any, with the CR.
- If the CR is no longer married to the petitioning spouse, the CR may request a waiver of the joint filing requirement. In this situation, the CR files the I-751 on their own. A waiver may be requested in the following circumstances:
- The marriage was entered into in good faith, but the marriage has terminated, or the petitioner has died;
- The marriage was entered into in good faith, but the conditional resident or her child was subject to abuse; and/or
- Termination of conditional residence would cause extreme hardship.
2.1 Joint Filing
A jointly filed I-751 must prove that
- the marriage was entered into in accordance with the laws of the place where the marriage took place;
- the qualifying marriage has not been annulled or terminated;
- No fee or other consideration was provided (other than to an attorney) in connection with the petition through which the alien obtained conditional permanent residency. In other words, the CR must not have paid the other spouse to fraudulently file the Form I-129F, Petition for Alien Fiancé(e), or Form I-130, Petition for Alien Relative.
- The marriage was not entered into for the purpose of procuring permanent resident status for the alien. In other words, the marriage must be valid.
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.
USCIS’ instructions ask for documents establishing the validity of the relationship “from the date of the marriage to the present date.” That’s usually the best period to focus on, but in cases where the evidence isn’t clearly sufficient, it may be helpful to consider filing documents from prior to the marriage.
There are an almost unlimited types of evidence that could prove the validity of a marriage. Still, the the strongest evidence usually focuses on the following types of evidence specified in the USCIS instructions:
- Birth certificates of children born during the time of this marriage, if any;
- Lease or mortgage contracts showing joint occupancy and/or ownership of your communal residence;
- Financial records showing joint ownership of assets and joint responsibility for liabilities, such as joint savings and checking accounts with transaction history, complete joint Federal and State tax returns, insurance policies that show the other spouse as the beneficiary, joint utility bills, or joint installment or other loans; and
- If applicable, copies of military Leave and Earnings Statements showing receipt of Basic Allowance for Quarters (BAQ) with family members and/or Form DD-1172 for military family member identification cards.
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:
- the petitioning spouse has died;
- the marriage was entered into in good faith but has ended in divorce or annulment.
- extreme hardship would otherwise result due to factors which arose subsequent to the conditional resident’s immigration; or
- 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.
A Form I-751 seeking a waiver may be filed even after the 90-day filing window for jointly filed petitions. These waivers are separate and independent, and multiple grounds should be asserted where applicable. A waiver petition may be filed subsequent to a jointly filed petition.
Petitioning Spouse Has Died
If the petitioning spouse dies during the two-year period, a joint petition is not required. 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
An I-751 can be filed seeking a waiver of the joint petition requirement on the basis that the marriage was entered into in good faith but has ended in divorce or annulment. Obviously, a divorce or annulment may raise a suspicion that the marriage was not entered into in good faith. USCIS will consider the amount of commitment by both parties to the marital relationship. Such evidence may include:
- documentation relating to the degree to which the financial assets and liabilities of the parties were combined;
- documentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence;
- birth certificates of children born to the marriage; and
- other relevant evidence.
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 arose 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. Common areas of hardship upon removal from the U.S. include health (mental and physical), safety, education, economic, and any personal considerations.
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. 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.” Supporting evidence may include copies of reports or official records issued by police, courts, medical personnel, school
officials, clergy, social workers, and other social service agency personnel. You may also submit any legal documents relating to an order of protection against the abuser or relating to any legal steps you may have taken to end the abuse.
You may also submit evidence that you sought safe haven in a shelter for the abused or similar refuge, as well as photographs evidencing your injuries.
3. Procedures for the I-751
3.1 Timely Filing
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.
On September 10, 2018, USCIS changed the filing location for Form I-751, Petition to Remove Conditions on Residence. This form was previously filed at the California and Vermont service centers. Now, petitioners must send Form I-751 to a USCIS Lockbox facility. Initial processing will then take place at a regional service center in California, Nebraska, Vermont, or Texas.
If the CR is abroad temporarily, his or her state of residence remains unchanged, so use the filing address designated for that state.
A jointly filed petition should be signed by the CR and spouse and accompanied by supporting documentation confirming the validity of the marriage.
Upon proper filing, CR status is extended automatically until such time as USCIS adjudicates the I-751.
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.
- If the I-751 is not submitted, the USCIS Service Center should wait for 60 days after conditional residence status has expired to give the couple “a last chance” to file the I-751. Then, the Service Center should route your file to a district office for issuance of a Notice to Appear, thereby initiating removal (deportation) proceedings.
- 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. “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.” 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. The explanation may be acceptable on its face, but the officer also may request corroborating evidence. 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. If the officer decides that there is no good cause, the petition will be denied.
- 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.
- During the period between when the 90-day filing window closes and when USCIS approves then restores permanent resident status, the late-filing foreign spouse has no lawful immigration status in the U.S.
- 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. 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.
3.3 Considerations for Persons Living Abroad Temporarily
There is no requirement that the CR be physically present in the U.S. at the time the I-751 is filed.
If the citizen or CR spouse lives outside the United States, the case will be held for a “reasonable amount of time” until they notify USCIS that they have returned to the U.S. and provide a U.S. address. (This does not apply to CRs abroad under military or Federal government orders.)
Biometrics will not be taken while your case is on hold. (And biometrics cannot be completed abroad.) Nor will you be interviewed while your case is on hold. As mentioned above, the hold will be removed, and your case will be processed, when you notify USCIS that you have moved back to the U.S.
A couple overseas who wish to avoid the overseas hold should be sure to list a U.S. address on the I-751 and consider specifically asking not to be placed on the overseas hold.
In any case for a CR residing overseas, it may be also be important for the I-751 to explain the reason the CR is overseas and demonstrate that CR status has not been abandoned. While the issue of abandonment is outside the scope of the I-751 adjudication, such an explanation may help avoid a referral to Investigations to initial removal proceedings for abandonment, and such an explanation may be helpful in demonstrating that the stay abroad is for a “reasonable amount of time,” thereby justifying an 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.
3.5 Documents to File
A jointly filed petition should include:
- Filing fee for I-751: $595.
- Biometrics fee: $85. (Each conditional resident dependent must also submit this biometrics fee, regardless of age).
- Form G-28, Notice of Entry of Appearance as Attorney (for each spouse, if filing a joint petition)
- Form G-1145, E-Notification of Application or Petition Acceptance
- Form I-751, Petition to Remove Conditions on Residence
- Form I-551, Permanent Resident Card (copy of front and back) (including for any included children)
- Evidence of the validity of the marriage, as discussed above
- 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.
- 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, Processing Times, and Tracking Case Status
Upon receiving a properly filed 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 18 months 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 United States. 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.
|Note: For cases filed prior to June 2018, the filing receipt extended conditional resident status for 12 months. Because of delays in processing I-751s, in August 2018, USCIS began issuing new receipt notices for such cases showing that status is extended for 18 months from the expiration of the Form I-551, Permanent Resident Card.|
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.”
USCIS Service Centers post processing times for I-751s at www.uscis.gov. Note that posted processing times reflect the time from issuance of the receipt to the Service Center’s review, which may result in approval, denial, request for evidence, notice of intent to deny, or transfer to a local Field Office for interview. Wait times from the Field Office’s receipt of the file to the interview vary widely among offices.
Federal regulations require that the regional service center processing a Form I-751 must “either waive the requirement for an interview [as discussed below] and adjudicate the petition or arrange for an interview within 90 days of the date on which the petition was properly filed.” Current processing times far exceed 90 days, and USCIS has no plan to come into compliance with this time limit.
You will normally receive an appointment notice to visit a USCIS Application Support Center approximately 4-6 weeks after you have filed Form I-751 to have your biometrics (photo, signature, fingerprints) electronically captured.
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.
However, in some cases, USCIS can reuse previously submitted biometrics. In such cases, you will not be scheduled for a biometrics appointment. Some (but not all) applicants whose biometrics can be reused are specifically informed of this.
Unless the interview is waived, an interview will be conducted at a local field office having jurisdiction over the CR’s residence.
On Dec. 10, 2018, USCIS revised its standard for determining whether the interview should be waived. “Generally,” an interview is required. However, USCIS “may” waive the interview if all of the following are true:
- A decision can be made based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States. This is an important reason to file a complete and well-prepared I-751 package.
- For I-751 cases received on/after December 10, 2018, USCIS has previously interviewed the conditional resident spouse (for example, for a Form I-485, Application for Adjustment of Status, or Form I-130, Petition for Alien Relative). Generally, USCIS will not have previously interviewed CRs who were issued CR1 or CR2 immigrant visas by a U.S. Embassy or Consulate abroad.
- There is no indication of fraud or misrepresentation on the Form I-751 or the supporting documentation.
- There are no complex facts or issues that require an interview to resolve questions or concerns.
If your interview is waived, you will receive a notice of the USCIS adjudicator’s decision in your case. Otherwise, you will receive an interview notice about 1 month in advance, specifying the time and date of your interview.
Failure to attend the interview may result in termination of the CR’s status and the commencement of removal (i.e., deportation) proceedings, so please notify our firm in advance if you are unable to attend the interview, so that we can discuss the possibility of requesting that it be rescheduled. Our firm will work with you to prepare for the interview.
USCIS reminds adjudicators that “the only issues being resolved through the I-751 interview process are those relating to the bona fides of the marriage and the removal of conditions. Should any other issues arise, they must be dealt with outside the I-751 interview and adjudication process.” For example, if during an I-751 interview the officer has no doubts about the bona fides of the marriage but also finds that the conditional resident had been arrested and convicted for a crime involving moral turpitude, the officer could not deny the Form I-751 joint petition on that basis. Instead, the officer would have to either initiate rescission
proceedings or refer the case to Investigations for initiation of removal proceedings (depending on when the arrest and conviction
3.9 Travel Abroad while the I-751 Is Pending
Caution should be exercised before departing the United States while your I-751 is pending. 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.
To be admitted to the U.S. during the period after your I-551 has expired but 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.
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.
Please discuss with our firm any international travel plans before finalizing them.
3.10 What if the I-751 Is Still Pending More Than 18 Months 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 18 months beyond the date shown on the I-551. If the I-751 is still pending after that period has passed, then the applicant should obtain additional evidence of CR status.
Make a USCIS InfoPass appointment at the local USCIS field office. If there are no InfoPass appointments available, the USCIS local office should also be able to provide the stamp on an emergency/walk-in basis, although local procedures vary by office. At the appointed time, bring the following documents:
- Valid, unexpired passport;
- InfoPass appointment notice (if applicable);
- Form I-751 receipt notice;
- Expired I-551 card; and
- Proof of residence within the jurisdiction of the USCIS office.
USCIS should collect the expired Form I-551 and issue a temporary I-551 stamp with a 12-month expiration date in the conditional resident’s unexpired foreign passport (if the expiration date of the passport is one year or more). If the conditional resident is not in possession of an unexpired foreign passport, USCIS should instead issue a Form I-94 (arrival portion) containing a temporary I551 stamp with a 12-month expiration date and a photograph of the conditional resident.
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
A conditional resident has the right to file a Form N-400, Application for Naturalization. In most cases, the I-751 will be filed prior to an applicant becoming eligible to file the N-400. That’s because to file an N-400 based on marriage, the applicant typically have resided as a conditional and/or permanent resident in the U.S. in marital union with a U.S. citizen spouse for 3 years. But there are some cases where an N-400 may be filed prior to the I-751, such as (a) in a case where late filing of the I-751 is permitted; or (b) expeditious naturalization under section 319(b) of the Act, as discussed below.
Generally, an I-751 must be approved before the N-400 can be approved. In particular, a conditional resident applying for naturalization on the basis of marriage must have an approved I-751 prior to being granted naturalization if the conditional resident:
- has a pending I-751 at the time of fling the N-400; or
- reaches the beginning of the 90-day period to file the I-751 before taking the oath of citizenship.
If an I-751 is pending at the time of filing an N-400 or is filed prior to the N-400 interview, USCIS will adjudicate the I-751 concurrently with the N-400.
There are two exceptions allowing approval of an N-400 before an I-751 is filed:
- naturalization under section 319(b) based on marriage to a U.S. citizen employed abroad by a U.S. company, its subsidiary, or another designated entity. No period of residence or physical presence in the U.S. is required for naturalization under section 319(b). Consequently, no I-751 is required if the N-400 is filed before reaching the 90-day I-751 filing period; or
- qualifying military service.
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.
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 5 years after gaining CR or LPR status. However, that requirement is reduced to 3 years if during that period you have lived in the U.S. with your citizen spouse. There is also a special provision allowing expeditious naturalization with no continuous residence requirement for applicants who reside abroad with (or seek to move abroad to reside with) their U.S. citizen spouse employed abroad by U.S. companies or their subsidiaries.
3.13 If You Are in Divorce or Annulment Proceedings
If the I-751 filing deadline takes place while a divorce or annulment action is pending, the following options exist:
1. The I-751 may be jointly filed, including the U.S. citizen’s signature. USCIS may approve a jointly filed I-751 even if divorce or annulment proceedings have begun, as long as it USCIS is satisfied that the marriage was bona fide when it took place and was not entered into for immigration purposes. A jointly filed I-751 may not be denied solely because of the pending divorce or annulment proceedings. Copies of the petition for separation or divorce should be submitted with the I-751.
In this situation, or in the event that the parties initiate divorce or annulment proceedings while the jointly filed I-751 is pending, additional evidence to consider filing may include evidence of efforts made to salvage the marriage, such as marriage counseling, family intervention, and affidavits from friends and family. If after the joint petition has been filed, the parties divorce, then USCIS should be notified immediately and the petition must be amended to a waiver case. If USCIS is not notified that the divorce or annulment has been finalized, then when adjudicating the petition, USCIS will issue a request for evidence (RFE) asking for a copy of the final divorce decree or annulment and a statement that the applicant would like to have the joint filing petition treated as a waiver. These documents must be filed within 87 days. If the parties’ marriage has not terminated, then the case will be adjudicated as a jointly filed case.
2. The conditional resident may request a waiver of the joint filing requirement on the basis that the marriage has already been terminated, although in reality the divorce or annulment proceeding are still pending. In this case, when an officer reviews the case, USCIS will issue an RFE requesting that within 87 days the final divorce decree or annulment be submitted. If that document is not submitted, a Notice to Appear (NTA) in removal proceedings in immigration court will be issued by USCIS.
3. The “jointly filed” box can be checked on the I-751 without the U.S. citizen’s signature. In this case, USCIS will issue a request for evidence (RFE) to obtain the signature. If no response to the RFE is filed timely, the I-751 will be denied and considered abandoned. At that point, the only option may be to wait until completion of the divorce or annulment proceedings then late file an I-751 seeking the waiver, arguing there is “good cause” for the late filing.
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. Failure to respond would lead to a denial due to abandonment. Or, if 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.
There is no appeal from a denial, although a motion to reopen may be possible.
Following a denial, USCIS should then initiate removal proceedings, in which the denial may be reviewed. 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.
3.15 Following Approval
Upon approval of the I-751, the conditional resident becomes a full permanent resident.
Issuance of the New Form I-551, Permanent Resident Card
USCIS will manufacture the I-551 (i.e., “green card”). It should be mailed to you within 60 days of the I-751 approval. It should be sent to your U.S. mailing address shown on your I-751, unless an updated address was subsequently reported to USCIS. In the unlikely event that you do not receive the card within 60 days, feel free to contact our firm so that we can follow up with USCIS on your behalf.
When you get the new card, review it carefully to ensure all data on the card is accurate. Provide copies of the front and back sides to our firm so that we can review them for errors, which USCIS occasionally makes.
In particular, please note:
- If your old card was category CR1, CR2, CR6, or CR7, the new category should replace the letters CR (conditional resident) with IR (immediate relative).
- If your old card was category CF1 or FF2, the new category should replace the letters CF (conditional fiancée) with IF (immediate fiancée).
- Card Expires: 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).
- Resident Since: This date should match the date of your original admission to or adjustment of status to conditional resident status.
International Travel Prior to Receiving the New Card
During the period between I-751 approval and receipt of the new card, you will have no evidence of your current immigration status. If you need to travel outside the U.S., before departing the U.S. you should ask your local USCIS field office to provide a stamp in your passport evidencing your status. Such stamps are issued as a matter of discretion.
4. Related Issues
Like any other permanent resident, a CR can be subject to the grounds of rescission, deportability, or inadmissibility. Also, eligibility for adjustment of status is available only in limited situations.
The government has the power to rescind an erroneous grant of adjustment of status within five years of the grant. USCIS will send a notice of intent to rescind to the person. If the person contests the finding within 30 days, there is a hearing before an immigration judge. However, if the person fails to respond within 30 days, no hearing is required. The standard of proof that the government must meet is “clear, convincing, and unequivocal.”
A permanent resident, whether conditional or not, can be subject to removal from the U.S. under several grounds of deportation. For example, someone who was granted permanent residence in error, could be subject to either rescission or could be found deportable for being inadmissible at the time of admission. The deportabilitiy grounds also include termination of conditional residence, marriage fraud, smuggling, various crimes, document offenses, and security offenses, among other things.
A permanent resident seeking to enter the U.S. after travel abroad can be subject to removal under several “ground of inadmissibility,” similar but not identical to the grounds of deportability. The grounds of inadmissibility only apply to a permanent resident who:
- has abandoned or relinquished that status,
- has been absent from the U.S. for a continuous period in excess of 180 days,
- has engaged in illegal activity after having departed the U.S.,
- has departed from the U.S. while under legal process seeking removal of the alien from the country,
- has committed certain crimes, or
- is attempting to enter the U.S. without proper inspection by a U.S. Customs and Border Protection officer.
- Eligibility for Adjustment of Status
If the I-751 cannot be approved, it may be possible to apply for permanent resident status on another basis. Generally, the first step is that a petition must be filed by a relative or an employer. With the approved petition, the second step is that you can either (a) file with USCIS a Form I-485, Application to Adjust Status; or (b) file with a U.S. Embassy or Consulate abroad an immigrant visa application.
However, the statute bars a CR from filing a Form I-485, meaning that an immigrant visa application must be filed abroad. Still, the Board of Immigration Appeals has held that if CR status has been terminated (such as because the I-751 was not timely filed, the CR failed to appear at the interview, or the I-751 was denied), then a person is no longer a CR, so it is possible to file a Form I-485.
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, 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
- Helping family members to immigrate
- INA § 2016(a)(1). ↑
- Id. ↑
- INA § 216(d)(2); 8 C.F.R. § 216.4(a)(1). ↑
- INA § 216(c)(2). ↑
- INA § 216(c)(3)(C). ↑
- USCIS, Form I-751 Instructions at 5-6 (Dec. 5, 2017). ↑
- See generally, Gary Chodorow, Top 11 Ways to Prove a Valid Relationship for Immigration (July 13, 2014). ↑
- USCIS, Form I-751 Instructions at 5-6 (Dec. 5, 2017). ↑
- INA § 216(c)(4); 8 C.F.R. § 216.5(a). ↑
- Matter of Stowers, 22 I. & 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). ↑
- 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). ↑
- USCIS Memorandum, D. Neufeld, Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions AD09-48, (October 9, 2009), AILA Doc. No. 09110667. ↑
- Matter of Rose, 25 I. & N. Dec. 181 (BIA 2010). ↑
- 8 C.F.R. § 216.5(e). ↑
- 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). ↑
- 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). ↑
- 8 C.F.R. § 216.5(e)(3)(i). ↑
- I-751 Instructions 6 (Dec. 5, 2017). ↑
- INA § 216(g). ↑
- USCIS, Filing Location Change for Form I-751 (Sept. 10, 2018). ↑
- 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.”). ↑
- 8 C.F.R. § 216.4(a)(1). ↑
- 8 C.F.R. § 216.4(a)(1). ↑
- 8 C.F.R. § 216.4(a)(6). ↑
- AFM ch. 25.1(g)(4). ↑
- 8 C.F.R. § 216.4(a)(6); AFM ch. 25.1(g)(4). ↑
- INA § 216(d)(2)(B). This does not apply to cases seeking a waiver of the joint filing requirement. ↑
- AFM ch. 25.1(g)(6). ↑
- AFM ch. 25.1(g)(6). ↑
- AFM ch. 25.1(g)(6). ↑
- AFM ch. 25.1(g)(6). ↑
- AFM ch. 25.1(g)(6). ↑
- 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. ↑
- 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. The I-751 receipt notice, which normally extends the conditional resident’s status for one year, states: “This extension and authorization for employment and travel does not apply to you if your conditional resident status has been terminated.” ↑
- INS Memorandum, P. Virtue, Section 212(a)(9)(b) Relating to Unlawful Presence (Sept. 19, 1997), AILA InfoNet Doc. 97092240 (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). ↑
- Id. ↑
- 8 C.F.R. § 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].”) ↑
- A Form I-751 filed by a CR overseas under military or Federal Government orders and who has a valid APO/FPO address is not “automatically” placed on an “overseas hold” because a new Form I-551, Permanent Resident Card, can be issued and sent to an APO/FPO address if the I-751 is approved. Instead, the officer will review the Form I-751 and supporting documentation to determine whether to waive the interview requirement. AFM 25.1(g)(2)(A)(ii). ↑
- AILA-SCOPS Q & A, Sept. 17, 2008, AILA Doc No. 08092369. See USCIS American Immigration Lawyers Association (AILA) Meeting, Mar.19, 2009, AILA Doc. No. 09031920, at p.6-7. ↑
- USCIS American Immigration Lawyers Association (AILA) Meeting, Mar.19, 2009, AILA Doc. No. 09031920, at p.6-7. ↑
- AFM 25.1(g)(4)(C). ↑
- AILA-SCOPS Q & A, Sept. 17, 2008, AILA Doc No. 08092369. ↑
- 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.”). ↑
- A reentry permit may be helpful in this regard. ↑
- AFM 25.1 ↑
- 8 C.F.R. § 216.4(a)(2), (4); Form I-751 Instructions (Rev. Dec. 30, 2009). ↑
- USCIS Fee Schedule, 81 Fed. Reg. 73292 (Oct. 24, 2016) (to be codified at 8 C.F.R. § 103.7). ↑
- 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). ↑
- USCIS, Update to Form I-797 Receipt Notices for Form I-751 and Form I-829 (June 12, 2018). ↑
- Employers are required to verify the employment authorization of their employees by completing Form I-9, Employment Eligibility Verification. 8 C.F.R. § 274a.2(b). However, employment eligibility should not be reverified merely because conditional residence has expired. USCIS, Handbook for Employers M-274 Part 5.1 (Jan. 11, 2018). ↑
- AILA-USCIS Field Operations Directorate Agenda 3 (Apr. 7, 2016), AILA Doc. No. 16041961. ↑
- AILA-USCIS Field Operations Directorate Agenda 5-6 (Oct. 22, 2015), AILA Doc. No. 15110332. ↑
- 8 C.F.R. § 216.4(b)(1). ↑
- AILA/SCOPS Teleconference Minutes (July 26, 2017), AILA Doc. No. 17091131. ↑
- USCIS, Update: New Biometrics Process for Conditional Permanent Residents, Feb. 28, 2007, AILA Infonet Doc. No. 07030261. ↑
- CIS Ombudsman, Annual Report 2018 30 (June 28, 2018) (citing information provided by USCIS). ↑
- AFM 25.1(i). ↑
- AFM 25.1(g)(1), as revised by USCIS, Policy Memorandum, Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence (PM-602-0168) (Nov. 30, 2018), AILA Doc. No. 18121035. When determining whether to waive an interview, the considerations listed above apply regardless of whether the Form I-751 is filed as a joint petition or as a waiver of the joint filing requirement. Id. ↑
- AFM 25.1(i)(1). ↑
- INA § 216(c)(3)(C). ↑
- 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). ↑
- See generally Gary Chodorow, Ground of Inadmissibility under U.S. Immigration Law, https://lawandborder.com/grounds-of-inadmissibility/. ↑
- See Gary Chodorow, Green Card Holders Who Stay Abroad over 6 Months Risk Abandonment (Feb. 3, 2013), https://lawandborder.com/risk-abandoning-green-card-abroad-6-months/. ↑
- AILA, Practice Pointer: Obtaining a Temporary I-551 Stamp Due to the Delayed Adjudication of an I-751 Petition, AILA Doc. No. 17111739 (Nov. 17, 2017). ↑
- USCIS, USCIS Field Operations—AILA Meeting 11 (Apr. 11, 2013). ↑
- 8 C.F.R. § 216.1. ↑
- USCIS Policy Manual, vol. 5, Part G, ch. 5. ↑
- USCIS Policy Manual, vol. 5, Part G, ch. 5. ↑
- USCIS Policy Manual, vol. 5, Part G, ch. 5. ↑
- For more information about expeditious naturalization under section 319(b), see Gary Chodorow, Expeditious Naturalization for Spouses of U.S. Citizens Employed Abroad, https://lawandborder.com/expeditious-naturalization-for-spouses-of-u-s-citizens-employed-abroad/. ↑
- 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. ↑
- INA § 319(b). ↑
- Memo, Neufeld, Acting Assoc. Director, USCIS, I-751 Filed Prior to Termination of Marriage 2 (Apr. 3, 2009) AILA Doc. No. 09072166. ↑
- Id. at 2-3; USCIS, Remove Conditions on Permanent Residence Based on Marriage (Feb. 2, 2018). ↑
- Memo, Neufeld, Acting Assoc. Director, USCIS, I-751 Filed Prior to Termination of Marriage 1-2 (Apr. 3, 2009) AILA Doc. No. 09072166; USCIS, Remove Conditions on Permanent Residence Based on Marriage (Feb. 2, 2018). ↑
- 8 CFR § 216.4(a)(1). ↑
- 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.”) ↑
- 8 C.F.R. § 214.6(d)(2). ↑
- 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). ↑
- 8 C.F.R. §§ 216.4(d)(2), 216.5(f). ↑
- See Opinion by Grover Joseph Rees III, INS General Counsel (Dec. 3, 1991), reproduced in 69 Interpreter Releases 627 (May 18, 1992). ↑
- AILA-SCOPS Q & A September 17, 2008. ↑
- See generally INA § 246(a); 8 C.F.R. §§246.1, 3. ↑
- INA § 237(a). ↑
- INA § 101(a)(13)(C). ↑
- A person admitted as a K-1 fiancé(e) may only re-adjust based on an approved petition filed by the same U.S. citizen who filed the Form I-129F, Petition for Alien Fiancé(e). INA § 245(d); 8 C.F.R. § 245.1(c)(6). ↑
- INA § 245(d). See 8 C.F.R. § 245.1(b)(12). ↑
- Matter of Stockwell, 20 I. & N. Dec. 309 (BIA 1991). See 7 USCIS-PM B.7(G). ↑