Married couples that have been granted a conditional green card will need to apply for the Form I-751 (Petition to Remove the Conditions of Residence) within 90 days of the expiration date of their two-year conditional period. Filing for the I-751 helps U.S. Citizenship and Immigration Services (USCIS) determine the validity of the marriage.
A Volatile Marriage or Divorced
In cases where the marriage is still going strong, the couple files the joint petition together and eventually, USCIS issues the permanent resident spouse and/or step-child a 10-year permanent resident card. However, what happens when the marriage is in a fragile state or the couple has divorced? This is where waivers come into play. There are 3 different categories of waivers:
- Good-faith marriage that was terminated;
- Good-faith marriage but battered or subject to extreme mental cruelty; and/or
- Extreme hardship.
Waivers require a substantial amount of evidence in order to be granted. At the interview, the evidence will be examined and the petitioner will be questioned in detail about the circumstances and basis for the waiver.
Denied I-751 Applications and What You Can Do
There are many reasons for a denial of the I-751 and it is important to note that there is no right of appeal from a denial. Therefore, it is crucial to make sure all the proper steps are taken to assure you and your spouse are approved for permanent residency with a 10-year green card.
Reasons for Denial of an I-751 Application
There are usually three main reasons for the denial of an I-751 application. By knowing these reasons upfront you and your spouse can be proactive and prepared to meet the requirements.
Late Submission or No Filing
Our South Florida immigration attorneys cannot stress the importance of timing on your application. The I-751 application/petition needs to be filed within 90 days before the expiration date of the couple’s 2-year conditional period after marriage. This timeframe is strictly enforced.
USCIS may accept a late filing if you can show “good cause and extenuating circumstances” for failure to file the petition within the 90-day period. This will require a written explanation and corroborating evidence. USCIS has described what it believes constitutes “good cause” as: hospitalization, long-term illness, death of a family member, the recent birth of a child, or a family member on active duty with the U.S. military. If an explanation is not provided, USCIS will deny the petition.
If your I-751 is denied because of a late filing, then your case will be referred to immigration court for removal proceedings and the foreign spouse may be deported. If you miss your court date you will receive immediate deportation.
There is no right of appeal once you have been denied for an I-751 application/petition.
Insufficient Evidence of a Real Marriage
The purpose of the I-751 application/petition is for you and your spouse to prove that you have a legitimate marriage. The burden of proof lies on you to provide evidence that shows you have entered the marriage in good faith and it is not a sham.
Like in any court case, the more evidence provided the better. Be prepared to provide more information than the marriage certificate. Examples of additional documentation include:
- Birth certificate(s) of any children born into the marriage (if applicable)
- Evidence of cohabitation (both names shown on utility/cable/water bills, lease or mortgage with both names included, etc.)
- Combined finances shown in bank statements
Sadly some marriages are just fraudulent to begin with. The I-751 application will be denied if there is not enough evidence to prove a good faith marriage.
In addition to marriage fraud, you and your spouse can be denied if there are any recent criminal charges. The foreign spouse will need to be fingerprinted by the FBI and suspicion of criminal charges can be a reason for denial and your permanent residence denied.
No Right of Appeal From I-751 Denial
Remember, there is no right of appeal once you have been denied of for an I-751 application/petition. Once you have been denied, you will receive a letter from USCIS stating the reasons for denial and a Notice to Appear (NTA) in immigration court for removal proceedings.
You may have a chance to present your case to a South Florida immigration judge during the removal hearing and hope that the judge can grant you permanent residency.
Why You Should Have an Immigration Lawyer
You and your spouse should consult with a qualified and experienced immigration lawyer as soon as possible. The lawyers at Hubbs Law Firm, in the Miami area, will assist you in preparing your I-751 application/petition and make sure you have provided enough evidence to show that your marriage is real.
If you are denied and are facing deportation through immigration court, our Miami immigration lawyers will review your case and explain your options. We will represent you in court to show the judge that you do have a good faith marriage. It is crucial to reach out Hubbs Law Firm before your hearing. Contact us for a consultation today. We would be proud to help you and your spouse obtain a permanent residence in the United States.
Please note that by reading this blog you are not entering into an attorney-client relationship with Hubbs Law, P.A. This blog only provides general legal information. Every case is unique and you should request a consultation to ensure that you are getting the correct legal advice for your specific case.