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My I-751 Has Been Denied. What Are My Options?

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Form I-751 is required to be filed by any conditional resident who obtained their residency through marriage. As part of the I-751 process, the applicant must provide USCIS with evidence related to the marriage. An I-751 can be filed on several bases. If you are divorced, you can still proceed with an I-751 with proof of the divorce. Generally, you may file the I-751 within three months prior to your conditional green card expiring.

I Just Received a Denial. What are My Options?

The USCIS denial notice should explain the reasons for the decision and outline your options. Common reasons for denial include lack of evidence of a bona fide marriage, inadmissible criminal activity, or filing outside the designated time period.

Lack of Evidence

If your case was denied based on lack of evidence, it may be advisable to either file a motion to reopen or refile your I-751 with more evidence. Generally, the more evidence you provide the better. Whether you wish to refile your I-751 or seek a motion to reopen is a decision you should discuss with your immigration lawyer. An immigration lawyer can provide you helpful advice on what evidence to include in your application, and how to obtain certain evidence if you have trouble obtaining it.  Items that can be included as evidence that support a "good faith marriage" include:

  • Photographs
  • Travel itineraries
  • Joint Bank Statements
  • Insurance Plans (auto, health, rental)
  • Emergency contact for work or school, listing your spouse as the contact
  • Proof of shared membership such as Costco, Netflix or a local gym
  • Text messages between spouses
  • Birthday and anniversary cards
  • Proof of marriage counseling (if applicable)
  • Receipts for gifts 
  • Lease agreement
  • Proof of any joint property
  • Affidavits signed by friends and family, signed under penalty of perjury
  • Children's birth certificates

Untimely Filing

An I-751 joint petition must be filed within the 90 days before the second anniversary of CR status. 8 CFR § 216.4(a)(1).  However, an I-751 based upon a waiver (such as divorce) can be filed before, during, or after the 90-day period.  8 CFR §216.5. Failure to file a joint I-751 petition within 90 days shall result in automatic termination of conditional status. 8 CFR § 216.4(a)(6). However, USCIS may waive the untimely filing for “good cause and extenuating circumstances.” When a joint petition is filed untimely, the instructions to the form require the petitioner to file a written explanation for her failure to timely file and a request that USCIS excuse the filing. The law provides for “broad discretion” as to what constitutes good cause.  Examples of good cause include:

  • Illness, including physical and mental health
  • The death of a close family member
  • Family emergency
  • Severe and unexpected financial situations that may have affected your ability to pay the filing fee
  • Because of the broad discretion, a good faith explanation of why the application was not timely filed, can be accepted
     

Motion to Reopen or Reconsider

If you believe USCIS made an error in the decision or have new evidence that strengthens your case, you can file a motion to reopen or reconsider. This should be done within the timeframe mentioned in the denial notice, which is usually 30 days from the date of the decision. Sometimes it may be advisable to refile your I-751 altogether, and this is an important strategy to discuss with your immigration lawyer.

New I-751 Filing

In some scenarios, it is advisable to refile the I-751. The benefit of refiling the I-751 is that it is easier to obtain an I-551 stamp to continue with your employment and travel. It is important, however, to make sure that any concerns that lead to the initial I-751 denial be resolved in your new filing.

Request for De Novo Review of I-751 in Immigration Court

Generally, once an I-751 is denied, and no appeal is filed, USCIS refers the case through a “Notice to Appear” to immigration court. Once in immigration court, the applicant has the right to have the I-751 application reviewed by an immigration judge. Once in immigration court, you can present new evidence, have witnesses testify, and explain why the prior USCIS determination is wrong. Also in proceedings, you have the right to subpoena evidence or witnesses, and this may be helpful if you are having trouble obtaining evidence related to your marriage.

It is important to note that although USCIS may refer a case to immigration court, it sometimes does not. In a situation where your I-751 has been denied, but not referred to immigration court, it may be advisable to refile an I-751 with USCIS directly.

Adjustment of Status Based on New Petition 

Under Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991) the BIA held that someone whose conditional residency was terminated has the right to adjust status based on a new petition.  In these scenarios, you should be mindful of allegations of marriage fraud or misrepresentation as it relates to the initial conditional residency.

What is My Status Once My Conditional Residency is Terminated?

An applicant seeking lifting of conditions during removal proceedings is entitled to proof of his or her status as a lawful permanent resident until the adverse conclusion of the removal proceeding. Under 8 CFR § 264.5(g), “A person in….removal proceedings is entitled to evidence of permanent resident status until ordered….removed.”

Also, in Matter of Stowers, 22 I&N Dec. 605 (BIA 1999) the Board of Immigration Appeals noted an alien’s lawful permanent resident status does not cease until the entry of a final administrative order removing the alien from the United States, generally where the Board renders its appellate decision. See, e.g., Matter of Lok, 18 I&N Dec. 101, 105 (BIA 1981) (discussing termination of lawful permanent residence within the meaning of section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (1976)), aff’d, 681 F.2d 107 (2d Cir. 1982); see also Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991) (“To revoke an LPR’s green card pending completion of the deportation process would severely undermine the integrity of the process itself and impose significant hardship on the alien involved.”).

USCIS has recognized the proposition that although an alien’s conditional resident status has been terminated, such alien retains temporary status during the pendency of review in proceedings to remove the alien. See Memorandum of Kathy A. Redman, Acting Ass’t Comm’r for Adjudications, Status of Conditional Residents in Proceedings, (Oct. 9, 1997), reprinted in 74 Interpreter Releases, No. 43, Nov. 7, 1997, app. III at 1731 (stating that “the terminated conditional lawful permanent resident should be issued a temporary I-551, during the pendency of such review”); Status of a Conditional Permanent Resident After Denial of I-751 During Pendency of Review by EOIR, 96 Op. Gen. Counsel 12 (Aug. 6, 1996).

Therefore, as long as there is no final order from an immigration judge, the applicant remains a lawful permanent resident and can continue to live, work and travel just as any other green card holder. USCIS termination of that status is not a final order.

Conclusion

Receiving a denial for your I-751 petition is stressful, but don't panic. The denial notice will explain the reason of the denial. Consult an immigration attorney to explore refiling with more evidence, a motion to reopen, a new I-751 filing, or review of your application in immigration court. Remember, your lawful permanent resident status may still be valid while you fight the denial.

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