The U.S. Citizenship and Immigration Services (USCIS) issued a Policy Alert recently that informs practitioners of recent changes in the agency’s Policy Manual concerning the filing and adjudication of Form I-751, Petition to Remove Conditions on Residence. The guidance consolidates and updates information regarding both joint petitions and waivers, as well as the required steps to change the basis for the initial filing. It also amends the agency’s position on whether a former conditional resident who failed to file a timely I-751 may adjust status to permanent residence on a new basis. The following are highlights of this updated guidance.

Background

Spouses and children who obtain lawful permanent resident (LPR) status through a marriage to a U.S. citizen (USC) or an LPR that occurred fewer than two years earlier will be granted conditional permanent resident (CPR) status for a two-year period. The CPR must file Form I-751 within the 90-day window before that two-year status expires in order to remove those conditions.

The I-751 can be filed either as a joint petition (the marriage was entered in good faith and has not been terminated) or as a waiver of the joint petition (bona fide marriage that has been terminated; bona fide marriage but the CPR has been the victim of battery or extreme cruelty; or the CPR would experience extreme hardship if returned to their home country). If filing as a waiver, the CPR can select all bases that apply. Although the USCIS considers eligibility for all grounds requested, the agency only approves a waiver based on one category. The CPR may also use the I-751 to make an “individual filing request” based on the USC or LPR petitioning spouse’s death.

The CPR may file an I-751 as a joint petition, waiver, or individual filing request at any time before they are subject to a final order of removal. This includes CPRs who have been formally terminated, issued an NTA, and are subject to removal proceedings. The procedures for filing an I-751, as well as changing the basis of the filing, have been amended over time.

USCIS Notices

Upon granting CPR status, USCIS will notify the person either orally or in writing of their rights and obligations, particularly of the need to file Form I-751 before the end of the two-year period. The agency will send a second notice to the CPR and petitioning spouse approximately 90 days before the CPR’s second anniversary of becoming a CPR. The notice reminds the CPR of the requirement to file a timely I-751.

After a CPR files a timely I-751, USCIS sends the person a receipt notice, which serves as evidence of an extension of the CPR status for the time period specified in the notice. The CPR remains in lawful status until USCIS makes a decision on the I-751. The receipt notice, along with the expired CPR card, may be used to prove employment authorization and authorization to return to the United States after temporary foreign travel. A CPR whose card has expired and whose extension notice period has also expired may request documentation of status for travel, employment, or other purposes by calling the USCIS Contact Center to schedule an appointment with a USCIS field office. The USCIS field office may issue an I-551 stamp to serve as temporary evidence of CPR status.

The USCIS may terminate the status of a CPR during the two-year conditional residency period if it determines that the person did not enter a bona fide marriage or was otherwise not entitled to CPR status. More likely, the USCIS can terminate the CPR’s status upon the person’s failure to file a timely I-751 or upon denying the joint petition or waiver. At that point, the USCIS is required to issue a Notice to Appear commencing removal proceedings, which is where the CPR is entitled to a de novo review before an immigration judge (IJ). A CPR with a terminated status is entitled to evidence of lawful permanent residence while awaiting review in immigration proceedings. USCIS will issue evidence of such status unless the CPR has received a final order of removal.

Readjustment after Termination of CPR Status

In a significant change in interpretation, the USCIS will allow a person whose CPR status has been terminated for failure to timely file an I-751 to adjust status based on a new petition. It does not matter if the USCIS had issued a formal notice of termination of CPR status before the noncitizen filed an adjustment application under the new basis since the person’s status had terminated as a matter of law. But the application to adjust status must be filed after the second anniversary of initially obtaining CPR status.

Late Filing

If the CPR fails to file an I-751 during the 90-day period immediately preceding the second anniversary, they can still file late if they include an explanation for the untimely filing and any supporting documentation. Good cause and extenuating circumstances for filing an untimely joint petition could include, but are not limited to, the following: hospitalization; long-term illness; death of a family member and bereavement; recent birth of a child; legal or financial problems; providing care for someone; serious family emergency; work commitment; or a family member on active duty with the U.S. armed forces. Forgetting to file, absent other factors, generally does not constitute good cause and extenuating circumstances.

I-751s Filed as Waivers

CPRs may file a waiver request at any time before, during, or after the 90-day period immediately preceding the second anniversary of the CPR’s receiving status. A CPR does not have to wait until the 90-day period begins; they may file a waiver as soon as they are eligible. This is true in the case of divorce or annulment, as well as the CPR’s being a victim of battery or extreme cruelty.

Similarly, CPRs may change the basis of a waiver request if the circumstances have changed after filing the I-751. For example, the waiver might have been initially filed based on extreme hardship, but the parties have now divorced. In that case the CPR makes the request in writing to the USCIS office that issued the receipt notice or most recent correspondence. The CPR may also make this request at the interview if one is required. However, in cases involving changes to or from a waiver based on battery or extreme cruelty, the CPR may not amend the filing basis. In those cases, the CPR must file a new I-751 and include supporting documentation. If the CPR files a waiver based on termination of the marriage, but the parties are still in pending divorce or annulment proceedings, USCIS will issue an RFE. This gives the CPR the opportunity to establish eligibility for the waiver by submitting a copy of the final divorce decree or annulment. But the CPR must submit the final order during the period allowed by the RFE, which is usually limited to 87 days.

I-751s Filed as Joint Petitions but Now in Failing Marriages

If the CPR and petitioning USC or LPR spouse filed a joint petition, but they are legally separated or in pending divorce or annulment proceedings, USCIS officers are instructed to issue a Request for Evidence (RFE) asking for a copy of the final divorce decree or annulment, along with a written request stating that the CPR would like to have the joint petition amended to a waiver based on divorce. It is presumed, in that situation, that the legal termination of the qualifying marriage would occur while the I-751 is pending, either during the response period to the RFE or afterward.

According to the USCIS, it is the CPR’s responsibility to proactively notify the agency of a separation or pending or finalized divorce or annulment proceedings. In these instances, the CPR should contact the USCIS office that issued the receipt notice or most recent correspondence. If the CPR fails to notify USCIS of the divorce proceedings, the agency will obviously not know to issue an RFE requesting a final order. Nevertheless, if the divorce or annulment is finalized while the joint petition is pending, the CPR must request that USCIS amend the joint petition to a waiver based on divorce.

In the event the marriage is not terminated, even though the parties are legally separated or in divorce proceedings, the USCIS may proceed to adjudicate the joint petition. The I-751’s approval is based on the marriage being bona fide at the time it was entered and not being terminated at the time of adjudication. If all other eligibility requirements are met, and both the CPR and petitioning spouse appear for an interview (if required), the I-751 will be approved.

Similarly, if the petitioning USC or LPR spouse dies after the CPR files a joint petition and while it is still pending, the CPR must notify USCIS and provide proof of the death. USCIS then amends the joint petition and exempts the CPR from the joint petition requirements; there is no need for the CPR to file another Form I-751.

Decisions

The decision to remove conditions on residence in a joint petition or individual filing request is not discretionary. The only consideration is whether the applicant has satisfied the eligibility requirements (e.g., bona fide marriage, marriage not terminated; marriage terminated based on death). In contrast, the approval of a waiver petition is solely within the discretion of USCIS. The officer, therefore, may take into consideration factors not directly related to the bona fides of the qualifying marriage, such as a significant criminal record. If the negative factors outweigh the positive, the officer may deny the petition. Denials of an I-751 are not appealable. The CPR’s eligibility for further administrative review is in immigration proceedings before an IJ where the person is entitled to de novo review. If the IJ decides to order the CPR removed from the United States, the CPR may appeal the decision to the Board of Immigration Appeals. In addition, CPRs can file a motion to reopen or reconsider the USCIS’s denial of an I-751 if they disagree with the decision or have additional evidence that shows the decision was incorrect.

Eligibility to Naturalize

Given the current backlog in adjudication of I-751s, many CPRs are eligible to file for naturalization before their petitions have been approved and they have been granted unconditional LPR status. CPRs in this situation are eligible to apply for naturalization while their I-751 is still pending. In that case the USCIS officer will adjudicate the I-751 before or at the same time as the Form N-400, Application for Naturalization.

Misclassified CPRs

Spouses and children who believe they were misclassified as CPRs should file a Form I-90, Application to Replace Permanent Resident Card, according to the form instructions. The USCIS will evaluate the facts and make any necessary adjustment to the person’s status. If the person should have been granted non-conditional LPR status (ten-year green card), they will not need to file an I-751.