Content
- Introduction
- Joint Petition vs. Waiver Petition
- Who Can Apply
- When to Apply
- Key Documentation for Filing an I-751
- Proving a Bona Fide Marital Relationship
- Spousal Abuse
- Exceptional Hardship
- What to do after filing I-751
Introduction
Filing an I-751 is the next step towards naturalization for those who have received legal status through marriage. An I-751 is a petition to remove the conditions of the 2-year marriage green card. Much like the process of obtaining your marriage green card, an I-751 requires producing substantial evidence to prove your bona fide marriage. Once your petition is approved, the conditions on your permanent residency status will be removed, and you will receive your standard green card of 10 years residency.
Joint Petition vs. Waiver Petition
Generally, the I-751 petition must be filed by the green card holder along with the spouse who filed the original immigrant visa petition. This is recognized as a joint petition.
If you are the conditional permanent resident and for some reason you are unable to file a joint request (e.g. divorce, death), you may apply for a waiver of the requirement to file the joint petition in accordance with certain provisions set out in the Code of Federal Regulations (“CFR”).
This is recognized as a waiver petition. CFR §216.4 sets forth the requirements and provisions that an I-751 must satisfy in order to be approved; however, this article will address the main requirements you must know and consider when preparing to submit your joint or waiver petition.
Who Can Apply?
The conditional marriage green card is issued to the noncitizen spouse who has been married for less than two years at the time of filing for the visa. The married couple must file the I-751 together in order to remove the conditions and obtain a permanent visa for the conditional resident. If you classify with any of the following categories, you are also eligible to file for petition individually (waiver).
My conditional residence is based on my marriage, and I am unable to file a joint petition with my spouse because:
- My spouse is deceased;
- My marriage was entered in good faith, but the marriage was terminated through divorce or annulment; or
- I entered the marriage in good faith, and, during the marriage, I was battered, or was the subject of extreme cruelty, by my US citizen spouse.
If you have dependents or children who were also brought to the US, their visa is also subject to the two-year restriction; therefore, they must also file the I-751 petition in order to remove their conditional status. Pages 3 through 5 of the form is allocated for children, see here.
When To Apply?
When filing an I-751, there is a specific timeframe in which the applicant must submit the petition. For joint filing, the green card holder should apply within 90 days BEFORE the expiration of the two-year green card. Your application will not be approved if filed any earlier than the given timeframe (and yes, USCIS will observe the timestamp marked on the postage!) It is important to file early within the 90-day period to avoid any unnecessary drawbacks. Consider the following scenario:
Maria filed her I-751 within 10 days of the expiration of her conditional green card. Three weeks have passed, and Maria has not received any documents or receipt issued by the government stating she filed her paperwork. Maria’s green card is now expired, she has no receipt for an approved application, and now she’s having problems obtaining employment and traveling lawfully based on her current expired status.
There have been many cases similar to Maria’s where applicants’ green cards expire while waiting to be issued a receipt. As a result, conflicts arise and the amount of paperwork that ensues becomes a nightmare! Therefore, it is in your best interest to file your petition as early as possible.
If you are filing a waiver petition based on a divorce, you can file at any time, even after your green card is expired (not recommended). You will need to document that your marriage was entered in good faith, but the relationship didn’t work out.
For these reasons, the applicant should not be penalized or restricted on when to file to remove conditions. However, the USCIS might analyze different factors when reviewing your application in order to confirm that the marriage was authentic and not entered for immigration purposes.
For example, the government might consider the length of time the couple lived together when reviewing the application. If your answer is less than 6 months, your case may pose a high risk. If you lived together for more than 1 year, your case is at lower risk to be scrutinized for authenticity.
Lastly, you can file a waiver petition if you and your US citizen spouse are separated and have not filed for divorce yet. However, you should consider filing for a divorce in the meantime. It is beneficial to the timeliness of your case to be divorced by the time of your I-751 interview.
Technically, the petition cannot be adjudicated or resolved if there is no divorce. Otherwise, at the interview, the officer will give you 85 days to respond showing a recorded divorce.
There is a $595 filing fee along with an $85 biometrics fee, totaling to $680 that must be paid by check submitted along with your form. You must send your application and payment to the USCIS office of your jurisdiction.
Key Documentation for Filing an I-751
Section 204(a)(2)(A) of the Immigration Nationality Act (“INA”) provides an evidentiary standard that the immigrant applicant must establish “clear and convincing” evidence that the prior marriage of which the immigrant obtained his/her conditional permanent resident status was not entered into “for the purpose of evading any provision of the immigration laws.” INA §204(a)(2)(A). Therefore, the applicant holds the burden of proof to present an existing marriage is or was authentic. When preparing to file your I-751, keep one thing in mind: documentation is key! Providing physical documentation will increase the likelihood of USCIS approving your petition. Evidence displaying cohabitation and joint financials are most convincing to show a real marriage as they show that you and your spouse have joint interests together. Whether filing jointly or a waiver petition, here’s a list of supporting documents you should consider submitting with your I-751.
Documents of Cohabitation
- House deed in your names;
- Bills in your names;
- Tax documents filing jointly;
- Health insurance with both names;
- Car insurance with both names.
Documents of Joint Financials
- Joint bank accounts;
- Joint assets/debts
In addition, evidence that you and your spouse have a publicly-displayed marriage will deter from scrutiny of marriage fraud. Immigration courts strongly weigh personal testimony and evidence that you present yourselves publicly. Consider also submitting the following:
Documents of Publicly-Displayed Marriage
- Travel documents (itinerary, tickets, photos);
- Photos of holidays;
- Social Media;
- Statements signed and dated by family and friends.
Lastly, if you and your spouse have any unusual circumstances that may draw attention to the relationship, disclose it and thoroughly explain the reasoning on your petition. For example, if you and your spouse live separately, the court will wonder, why? It is better to present all relevant information rather than submit an application with missing facts of the marriage.
Proving a Bona Fide Marital Relationship
For several years, marriage fraud has become an escalating problem within US immigration. To this day, immigration authorities tackle many cases confronted with immigrants sponsored by a US citizen and entering into marriage for the sole purpose of obtaining a visa.
Not only is this act illegal and will lead to immigration consequences, but also USCIS officials have expertise in reckoning fraudulent marriages. When filing your I-751, your number one objective when completing your application is to prove that you have a bona fide or genuine marriage.
INA §204(a)(2)(A) mandates that an immigrant filing for status must base his/her petition on a marriage entered in good faith. In addition, the petitioner must provide “clear and convincing evidence” that the marriage was not entered to evade immigration law provisions. The Board of Immigration Appeals has defined clear and convincing evidence as “a degree of proof which is more than a preponderance but less than beyond a reasonable doubt.” In the Matter of Carrubba, (BIA 1966).
When assembling evidence for your petition, think of how you can be your own “private investigator.” You will want to provide as much information about the relationship before the interview takes place. Otherwise, the interview will become lengthy and may seem endless as the officer will need to ask you many questions to gather information not provided in your application. A well-prepared joint petition with strong marital evidence may even result in having the interview waived.
Common criterion to support a bona fide marriage is evidence of cohabitation and public awareness of the marriage (see above). In addition, the USCIS may observe if there is any discrepancy of age or language between the couple, or evidence of an arranged marriage.
For waiver cases, you will want to prove the history of the relationship and why it did not work. For instance, it is not uncommon for cultural differences to arise. Other situations that may have led to terminating the marriage may include affairs, drug and alcohol addiction, and spousal abuse. Remember, in order to convert your conditional status, it is just as important to document the downfalls of the relationship.
In all, it is fundamental to establish a relationship organically. Do not rush into a relationship let alone a marriage for immigration purposes. As mentioned, the immigration office will see the fraud within the application and, in turn, will negatively affect you.
Spousal Abuse
One of the categories in which you may file a waiver petition is if you and/or your children are victims of spousal abuse. This can occur in the form of physical or emotional affliction by the US-citizen partner. If you are able to assemble supporting evidence that this occurrence is apparent in your marriage, you can file your I-751 at any time, even prior to the 90-day period.
It is beneficial to retain an experienced immigration attorney prior to applying for a waiver as you will be required to produce substantial, specific evidence along with your application to prove your case of spousal abuse. This infliction of harm can be present within a marriage in both violent and nonviolent ways. It is not uncommon for the citizen spouse to use your immigrant status against you in order to gain control over you and the marriage. Read more in order to see if any of these situations apply to you and how you can obtain necessary evidence to prove your case of spousal abuse.
Exceptional Hardship
Another category of an I-751 petition in which you may be able to file is due to circumstances of exceptional hardship. This category is unique in the sense that there is no domestic violence involved nor is it considered a waiver—the petitioner must present an exceptional case in which the government can issue a green card. His/her case must show that if the petitioner were placed in removal, this would cause extreme hardship on the applicant and on the dependent children. The USCIS has the discretion to give relief on a case-by-case examination; however, these type of petitions have an extremely strict standard to qualify as an exceptional hardship.
Upon receiving this I-751 category, the Immigration Nationality Act states that the USCIS should consider circumstances of the hardship occurring only during the period of admission for conditional permanent residency. INA §216(c)(4). This provision has undergone various interpretation based on the language of “period of admission.” While some believe that this text is ambiguous in its meaning, the Board of Immigration Appeals has ruled that the language attaches to the two-year timeframe of the conditional visa. See Matter of Munroe (BIA 2014). Therefore, if you are applying for petition under circumstances of exceptional hardship, the government will only consider evidence and factual circumstances occurring during your two-year conditional residency within the US.
You may want to consider consulting with an immigration attorney if you are filing under this category. Check out our examples of exceptional hardship.
What to do after filing I-751?
Once you have filed your petition, it may take several weeks to obtain your receipt through the mail. The receipt is also known as Form I-797C, Notice of Action, which will identify if you have properly filed your petition and, if so, extends your conditional residence for one year while the USCIS reviews your case. Therefore, you will need to carry both your expired conditional green card AND the I-797C with you at all times.
If you do not receive a receipt, pay close attention to what you receive in the mail. You may receive a letter requesting for more evidence. If so, this will cause a delay in the processing time of your petition and could cause further road blocks in receiving your ten-year green card. Again, it is important to file as early as possible and provide substantial evidence in your application!
Next, while your I-751 is pending, after one year from your filing date, you should file for citizenship. View this as the citizenship “fast track.” By doing so, it is likely that you could schedule your I-751 and citizenship interview together and essentially knock off 8-9 months from the entire process. In the end, it will benefit you to get both done at once versus staggering the process.
Overall, while the conditional green card gives you lawful status within the US, you must remember that it is only the first hurdle towards naturalization. You never know what is going to happen in the future, so you must always think ahead of how you can help yourself.
While no one enters into a marriage to think about its end, for immigrants, their lawful status remains contingent on the relationship. Additionally, other events that arise may affect your ability to obtain a green card or your citizenship. For instance, immigrants with criminal convictions or immigrants who leave overseas for a long period of time may face problems naturalizing. Remember to stay informed, file your paperwork on time, and follow the law!
