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How Do I File an I-751 Form for Residence?

WHAT IS THE PURPOSE OF THE PETITION TO REMOVE CONDITIONS ON RESIDENCE FORM I-751?

This petition is used by a conditional resident who obtained status through marriage, when the marriage is less than two years old at the time of filing, to request that U.S. Citizenship and Immigration Services (USCIS) remove the conditions on his or her residence.

The purpose of the I-751 is to reconfirm that the marriage was valid at its inception after two years of receiving Conditional Residency. It must be filed within the 90 day window prior to the expiration date of the Conditional Resident Card. The I-751 is accompanied by evidence of the validity of the marriage. If upon reviewing the I-751 USCIS agrees that the marriage was valid, USCIS may then remove the conditions so that the conditional resident becomes a full permanent resident and receives a card that is valid for 10 years.

DIFFERENT WAYS TO PROCESS I-751

The most common process involves couples that file jointly through marriage to be valid at inception, the parties must have intended at the time of the marriage to live together as husband and wife. Showing USCIS that your marriage is the real thing, and not just a sham to get a green card, is an important part of the application. USCIS is on the lookout for fraudulent marriages – that’s the whole reason the conditional residency system was created in the first place, under the Marriage Fraud Amendments of 1986.

A jointly filed petition should be signed by the CR and spouse, and accompanied by supporting documentation confirming the validity of the marriage. Upon proper filing, CR status is extended automatically until such time as USCIS adjudicates the I-751. In recognition of the lengthy delays in obtaining a decision on a Form I-751, USCIS issues a Form I-797 filing receipt that extends a conditional resident’s status for a full year.

If the conditional resident’s relationship with the petitioning spouse has failed during the two-year conditional period, the joint filing requirement can be waived by USCIS; If you are unable to file Form I-751 jointly with your U.S. citizen spouse due to death, divorce, abuse, or certain other circumstances, you may seek a waiver.

Three waiver options:

  1. The marriage was entered into in good faith but has ended in divorce or annulment. Be aware that a request for the good faith marriage waiver cannot be submitted until the divorce or annulment is final.
  2. The couple married in good faith but the petitioning spouse physically abused the conditional resident or subjected them to extreme mental cruelty. A waiver of the joint filing requirement is available if the qualifying marriage was entered in good faith but during the marriage the CR spouse was battered by or was the subject of extreme cruelty perpetrated by his or her U.S. citizen spouse and the CR was not at fault in failing to meet the joint petitioning requirements. USCIS has defined this exception as including, but not limited to, “being the victim of any act or threatened act of violence, including any forceful detention which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation … shall be considered acts of violence.” If you are applying for a waiver because you are being battered or subjected to extreme cruelty by your U.S. citizen spouse, proof of the abuse or cruelty must be submitted, such as a police report, hospital or medical reports, school reports, social worker reports, evidence of entry into a shelter or refuge, affidavits from witnesses, and photographs of injuries.
  3. Extreme hardship: If you are filing for a waiver of the joint filing requirement because the termination of your status and removal would result in “extreme hardship,” you must submit evidence that your removal would result in hardship significantly greater than the hardship encountered by other foreign nationals who are removed from this country after extended stays. The evidence must relate only to those factors that arose during the two-year period for which you were admitted as a conditional resident.
  4. The waiver applicant must establish that extreme hardship would result if he or she is removed from the United States. Some important things to remember when adjudicating a waiver filed on this basis are:

There is no requirement that the applicant establish that the marriage had been entered into in good faith. However, indications that the marriage had been in bad faith may be considered when weighing the discretionary factors.

Whether the applicant has already suffered hardship during or prior to his or her status as a conditional resident is irrelevant. Only extreme hardship which would result from deportation (presumably to the alien’s home country) is pertinent. The statute is prospective, not retrospective, in this regard. However, in some situations hardship already experienced can have a bearing on hardship which an alien might expect to experience if he or she is removed. For example, in some countries, a woman who has been divorced may suffer extreme isolation (“shunning”) in her home country or culture which rises to the level of persecution. While such conditions may be rare, they are definitely not non-existent.

Because the adjudication of a waiver application is a matter of discretion, factors about the applicant which are not directly related to the marriage fraud provisions may be taken into account (such as any criminal record). However, only the most significant negative factors would justify denial of an application where the applicant has sufficiently established that he or she would be subjected to extreme hardship if deported. As with any adjudication proceeding, the applicant bears the burden of proof to establish eligibility for the benefit sought.

Also See: WAIVERS OF INADMISSIBILITY Try it Yourself »

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This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

The Law Office of Janis Peterson-Lord is located in Long Beach, CA and serves clients in and around Long Beach, Hawaiian Gardens, Artesia, Harbor City, Wilmington, Cerritos, Bellflower, San Pedro, Carson, Paramount, Compton, Norwalk, Woodland Hills, Torrance, Lynwood, Santa Fe Springs, South Gate, Gardena, Bell, Huntington Park, Pico Rivera, Maywood, Los Angeles, Los Angeles County, Orange County.

 

Immigration Lawyer Long Beach

3454 East Anaheim St.
Long Beach, CA 90804
(562) 494-1010