Re-filing I-751 after denial: What you need to know

Re-filing I-751 after denial: What you need to know

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Not all permanent resident cards (the Green Card) are permanent. In fact, you will likely need to submit Form I-751, Petition to Remove Conditions on Residence or present your case before an immigration judge.

The main reason to submit Form I-751, Petition to Remove Conditions on Residence, is that your Green Card is valid for only two years. This would be the case if you received it because you are married to a US citizen, and the issue date took place before your second wedding anniversary. In this case, you received a conditional permanent residence.

Form I-751 must be filed within 90 days before the conditional Green Card expires. It is important to act promptly because you will be able to remain in the US legally only if the USCIS (the United States Citizenship and Immigration Services) accepts your form. They will ask you to attend an interview with your spouse.

If you are divorced or separated and your spouse refuses to cooperate, you can apply for a waiver of your spouse’s cooperation. If granted, you can submit I-751 on your own.

Why could you end up in immigration court fighting removal proceedings?

There are several reasons for you to end up in immigration court having to fight removal proceedings against you:

• You submitted Form I-751 petition too early or too late;
• Your Form I-751 petition is deficient in some way, meaning that it could lack supporting documentation;
• You missed your USCIS interview;
• Your biometrics revealed that you have a serious criminal record;
• The USCIS concluded that your marriage is a sham;
• Your spouse died before filing Form I-751, and the USCIS determines the marriage was fraudulent;
• Your spouse refuses to cooperate, and the application is denied despite presenting a waiver.

How can you defend an I-751 waiver?

First of all, you should contact an immigration attorney who can help you with the process and your situation. They will let you know that there are two ways you can defend against a denial of your I-751 waiver application, depending on your circumstances.

The first one is to re-file Form I-751, and the second one consists of defending your petition before an immigration judge. However, whichever your personal situation, you must act immediately since you risk deportation.

What happens if you miss your USCIS interview?

If you miss your USCIS interview or did not receive notice of it, you should contact the USCIS and explain your situation. Ask them to reschedule you for another interview. If you get one, do not miss it. If they refuse, you will probably end up in immigration court.

You can also submit a Motion to Reopen your case, and if it is accepted, you will get a second chance for an interview. However, it would help if you had an immigration lawyer in San Diego for this.

What to do if your I-751 denial orders you to appear in court?

You cannot appeal the denial of Form I-751; you will have to wait until you receive a Notice to Appear and contest the denial in court.

Your options here are to leave the US voluntarily, wait to be deported, or successfully defend your case in immigration court. This is because if you were asked to appear in court at a specific date and time, the opportunity to file Form I-751 with supporting documentation would have lapsed.

If a court procedure begins, the judge will take a fresh look at your case to your benefit. You can also submit new documentation you did not submit to USCIS before, testify and tell your story to the court, bring an immigration attorney with you, and call witnesses.

How do you prove that your marriage was not fraudulent?

If the USCIS denied your application based on suspicion that your marriage was fraudulent after issuing a conditional Green Card, it could be because of insufficient evidence that you and your spouse have shared lives together in the past two years.

Use the immigration hearing to present documentary evidence, your testimony, and also your spouse’s testimony.

Some of the documentation you can submit is:

• 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; and
• Affidavits from friends and associates as to the legitimacy of your marriage.

Can you file I-751 while in removal proceedings?

If you are already in removal proceedings, the situation gets complicated, and support from an immigration lawyer will be critical.

Take into consideration that if you received a Notice to Appear, NTA, you are now subject to removal proceedings before the immigration judge. It is most likely that the removal proceedings are related to failure to comply with the I-751 deadline or other conditional resident status issues.

Your situation, however, can be corrected if you can file an I-751 alongside a reasonable explanation and/or waiver request. Even if your I-751 was denied, you may still file another form with additional evidence and further explanation.

If you are already in removal proceedings, we recommend that you file your I-751 petition immediately. This way, a judge can stop the proceedings against you and wait for the USCIS to issue a decision. This office and the ISO are directed not to deny or delay an I-751 petition solely because a person is in removal proceedings.

If the USCIS approves your I-751 petition, the immigration judge may dismiss the removal proceedings.

Nonetheless, it is highly advised that you contact an immigration lawyer in San Diego to sort out this situation as soon as possible. Contact Kannan Law for more information.