Re-Filing I-751 After Denial: Defending Your Application in Immigration Court

Family-Based Immigration

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A green card gives you the right to reside permanently in the United States, right? Well, it would seem so, since the card itself states “Permanent Resident” next to your name and photograph. Nevertheless, things are not always the way they appear, and not all permanent resident cards are really permanent.

Why You Might Need to Submit Form I-751, Petition to Remove Conditions on Residence

Your green card will be valid for only two years if:

  • it is based on marriage to a US citizen; and
  • the issue date was before your second wedding anniversary.

If both of the foregoing two conditions apply, you will receive “conditional” permanent residence, and your US citizen spouse will need to help you file Form I-751, Petition to Remove Conditions on Residence apply to have the condition removed. Form I-751 must be filed within 90 days before your conditional green card expires.

Why It Matters

If your US citizen spouse files Form I-751 on your behalf, you will be able to remain in the US legally until the USCIS either accepts or rejects Form I-751. The USCIS will schedule an interview that both of you will be expected to attend.

If your US citizen spouse refuses to cooperate

Normally, the cooperation of your US citizen spouse is required. If you are divorced by the time it comes to submit Form I-751, your ex-spouse will not be able to help you become a bona fide lawful permanent resident, even if he/she is willing to help.

If you are divorced, or if you are separated and your spouse refuses to cooperate, you can apply for a waiver of your spouse’s cooperation. If your waiver is granted, you can submit Form I-751 on your own. Even this, however, does not guarantee that your petition will be granted.

How You Might End Up in Court

There are several ways that you might end up in immigration court fighting deportation proceedings against you:

  • You submit your Form I-751 petition too early or too late (more than 90 days before your status expired, or after your status had already expired).
  • Your Form I-751 petition is deficient in some way (it lacks critical supporting documentation, for example).
  • You missed your USCIS interview.
  • Your biometrics reveal that you have a serious criminal record.
  • Your spouse submits a Form I-751 petition on your behalf, but the USCIS nevertheless concludes that the marriage was a sham marriage and denies the petition.
  • Your spouse dies before filing the Form I-751 petition, and the USCIS determines that your marriage was a sham marriage.
  • Your spouse refuses to cooperate with you (or cannot cooperate because you are already divorced); you apply for a waiver, and your application is denied because the USCIS believes your marriage was fraudulent; or
  • Your spouse refuses to cooperate, you apply for a waiver and the waiver is granted, but the USCIS nevertheless concludes that your marriage was a sham.

Defending Your I-751 Waiver

There are two ways to defend against a denial of your I-751 waiver application, depending on your circumstances — (i) re-filing Form I-751, and (ii) defending your petition before an immigration judge.

If your denial does not include an order to appear before an immigration judge: Re-filing Form I-751 immediately after you receive a denial

If you receive a denial of your Form I-751 that does not include a Notice to Appear, don’t walk — RUN to the office of a skilled immigration attorney. You need to act quickly, and you need to present a well-prepared response.

If you have not yet received a Notice to Appear, you can refile Form I-751 with any deficiencies corrected, and hope that it will be approved with no court appearance necessary. If you receive one, however, you will have to defend yourself in court and risk deportation if the court rejects your arguments.

Special case: Your application is denied because missed your USCIS interview

If you missed your USCIS interview (perhaps you did not even receive notice of it), you have two options:

  • Contact the USCIS, explain your situation, and ask them to schedule you another interview. If you get one, don’t miss it! If you don’t get one, you will probably end up in immigration court.
  • Submit a Motion to Reopen your case (you will almost certainly need an immigration attorney for this). If your motion is accepted, you will get a second chance for an interview.

If your I-751 denial orders you to appear in court

The USCIS will not grant you an appeal of the denial of Form I-751. Instead, you will have to wait until you receive a Notice to Appear and contest the denial in court.

If your I-751 denial orders you to appear in immigration court at a certain date and time, your opportunity to refile Form I-751 with better supporting documentation will have lapsed, and you will have to either leave the US voluntarily, wait to be deported, or successfully defend your case in immigration court. How you defend yourself in court depends on why your petition was denied in the first place.

Immigration Court Procedure

Fortunately for you, the immigration judge will take a fresh look at your case — that means he will pretend you have filed your Form I-751 for the first time, without giving any deference to the decision of the USCIS. You can even submit new documentation that you did not submit to the USCIS.

In court you may:

  • testify and tell your story to the court;
  • bring an immigration lawyer with you;
  • submit new documentary evidence; and
  • call witnesses.

If you are successful, the judge will approve your petition for permanent residence but send the paperwork back to the USCIS for final processing. A word of caution — you are going to need an immigration attorney for this. Trying to proceed without one is like trying to perform surgery on yourself — don’t even try it. To win your challenge, you are going to have to successfully respond to the reason(s for which your I-751 petition was rejected, using convincing and admissible evidence.

Proving that your marriage was not fraudulent

If the USCIS denied your application based on suspicion of marriage fraud (one of the most common reasons for denial) after initially issuing you a conditional green card, whatever triggered their suspicions likely occurred after your green card was issued — in other words, something that happened or didn’t happen during the last two years. If you got divorced or if your spouse refused to cooperate with you, this is likely the reason.

The reason might also be a simple insufficiency of documentary evidence that you and your spouse actually share your lives together over the past two years In this case, you can use your immigration hearing to present documentary evidence, your own testimony, and even the testimony of your spouse as evidence.

Be prepared to submit evidence such as

  • Joint bank accounts;
  • Joint residential leases;
  • Joint mortgages;
  • Birth certificates of your children, if they were born during the marriage and the birth certificate lists both of you as the parents;
  • Affidavits from friends and associates as to the legitimacy of your marriage; and
  • Anything else you can use to convince an immigration court that your marriage was not fraudulently entered into.

The Herman Legal Group: At Your Service

The Herman Legal Group was founded over a quarter of a century ago by nationally-known immigration attorney Richard Herman. The Herman Legal Group is known for its compassionate concern for the plight of immigrants as well as its award-winning client services. In 2016, the U.S. News & World Report awarded it the designation of “Best Law Firm” in the field of immigration law.

Founding attorney Richard Herman authored a groundbreaking book on immigration, Immigrant, Inc., and has established himself as an authority on immigration ever since through a series of articles in major publications. Meanwhile, our staff speaks a dozen of the world’s major languages. We have helped thousands of people obtain legal immigration status in the United States, and we’d like to do the same for you.

Contact Us Immediately

If you need help with your I-751 or other immigration difficulties, we stand ready to assist. Contact us 24/7 by calling (+1) (800) 808-4013 or (+1)(614) 300-1131, by completing our online contact form, or by stopping in one of our offices in Columbus, Cleveland, or Detroit. We are qualified to practice US immigration law on behalf of clients located anywhere in the world.

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