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I-751 Petition, Questions and Answers

October 11, 2015

I-751 Petition, Questions and Answers

Author: Green Card Attorney Alena Shautsova

A conditional permanent resident has to file a petition to remove condition from the residency within 90 day period prior to the second anniversary of his/her status.

LATE FILING

The joint petition (when spouses are still living together) must be filed within the 90 days period, and if it is not, the couple has to present a very good excuse for missing the deadline, otherwise the petition will be rejected.

The petition that contains request for a waiver, on the other hand, can be filed at any time. For example A, conditional permanent resident (CPR), divorced from a USC (a U.S. citizen) just a year after A become a CPR. “A “ does not need to wait to file her petition. Another example, A is a battered spouse. She is still married to a USC who has been abusive. A missed her deadline and her conditional permanent resident card expired. “A” can still file the I 751 petition, even if the deadline is missed.

What is not a good excuse for late filing of the joint petition? Being abroad is not an excuse for late filing of the joint petition. The couple who are abroad must file the petition within the 90 day period prior to the second anniversary of the green card status.

DOES THE STATUS REALLY EXPIRE?

The warning notices say that if the a conditional permanent resident does not file the petition to remove condition timely, his/her status automatically expires. What really expires is the card itself. The status does not expire, despite the warning. In fact, the USCIS or an Immigration judge has to terminate the status in order for “A” to start the process again with a new USC-spouse. It also means that “A” technically will remain a permanent resident, but a conditional one and prior to undertaking any other Immigration steps, she would have to submit an I-751 petition, even if it will be filed late in order to get a finality for her situation. In this case, if the petition is denied, then the status will be terminated. (Does not apply to those seeking adjustment as refugees or asylees).

DO I INCLUDE CHILDREN IN MY I -751?

Yes, dependent children, those who receive their green card with their parents within 90 days of the parent’s conditional green card or, as often it happens, on the same day, must be included in the I -751 form. What do to if the child turns 21 by the time I-751 should be filed? The answer is : file the petition including that child. The statute that talks about removal of the condition for dependents refers children and sons and daughters, meaning, that under INA, I-751 properly included with the parents should receive their permanent resident status as well. See also Caprio v. Holder, 592 F.3d 1091 (10th Cir. 2010).

Finally, most common question: I was married to the U.S. citizen, and now we are divorced. Did I lose my status? The answer is NO, you did not lose your status. All you need to do is to file I -751 by yourself. It may be a little bit more challenging, as you need to show that you had a real marriage, but it is possible. If you are successful, you will receive a permanent green card.

FUN FACT: One can submit an unlimited number of I 751 petitions.

Category: Deportation, USCIS, Visas