What Happens if I 751 Petition Filed Late ?
Author: New York Immigration lawyer Alena Shautsova
I-751 petition is an Immigration form that is sued to remove the condition from permanent residency for those non-citizens whose marriage with a USC was younger than 2 years old at the time adjudication of adjustment of status application or issuance of an immigrant visa.
I-751 must be filed within 90 days prior to the second anniversary of the conditional residency. Sometimes, the petition is submitted late. A jointly filed I-751 petition filed after the second anniversary of the CPR’s admission or adjustment may be considered only if the CPR is able to demonstrate good cause and extenuating circumstances for the failure to timely file. The instructions to the Form I-751 clearly state that a CPR may file a petition untimely only if he or she includes a written explanation for his or her failure to timely file and a request that USCIS excuse the late filing. The law provides for broad discretion as to what constitutes good cause and extenuating circumstances. Some examples of what constitutes good cause and extenuating circumstances may include but are not limited to: hospitalization, long term illness, death of a family member, the recent birth of a child (particularly if there were complications), and a family member on active duty with the U.S. military.
Please note that there is no limit as to how many I 751 petitions can be filed.
Those filers who request a waiver from joint filing, also can file multiple petitions. If an immigration officer encounters a waiver request petition subsequent to the denial of a previous waiver request petition based on the same ground (termination of a marriage entered in good faith, extreme hardship, or battery or extreme cruelty), the he/she will review the new petition to determine if the applicant has presented additional evidence different from the first petition. If a waiver request I-751 petition filed subsequently to a previously denied waiver request petition is based on a different ground than the previous petition, the immigration officer will evaluate the new petition separately from the previous denial.
If the petition is denied, then the USCIS has to issue a Notice to Appear, because person’s conditional resident status gets terminated.
Also, sometimes it is apparent the couple will separate or will file for divorce. Nevertheless, the non-citizen still has to file I 751 petition, sometimes prior to the divorce proceedings being finalized. If a CPR files a waiver petition based on termination of marriage, but the CPR is legally separated or in pending divorce or annulment proceedings, USCIS shall issue an RFE requesting documents
terminating the marriage. If the CPR provides within the allotted 87 days responsive information, the service center shall adjudicate the petition on the merits. Otherwise, the I-751 will be denied.
It is always a good idea to consult with an attorney prior to filing of I 751, or if after a joint filing, the couple separated. Denial of the I 751 petition leads to the removal proceedings and can be avoided if mistakes are corrected early.