We helped a client whose I-751 journey began in August 2015 finally obtain her permanent green card in August 2021. Her case involved multiple setbacks due to circumstances beyond her control. We are sharing some of the issues here so others in similar situations may find them helpful.
I-751 Denial
A client filed I-751 jointly with her US citizen spouse in August 2015. They correctly informed USCIS by way of AR-11 that their address had changed in late 2016. Nevertheless, USCIS mailed an interview notice to the old address in 2017 which they did not receive. Due to not appearing at their interview, their first I-751 was denied.
When the client first approached us in 2019, she thought her case was still pending and wanted us to reach out to USCIS and find out why her case was taking so long. She was shocked when we told her about the denial according to the online case status.
Because we didn’t know the full story behind the denial, we had to initiate a FOIA request so that we may obtain a full record of her immigration filings from USCIS. When the FOIA package came, we were able then to review the denial letter and understand the sequence of events that led to her denial.
I-751 Refiling
We then re-filed her Joint I-751 in May 2019 with an explanation regarding the late filing. Re-filing a joint I-751 will be treated as a late filing because it is filed after the 90 day period preceding the 2nd anniversary of receiving the conditional green card. It will be up to the officer’s discretion to accept or not to accept. In our experience, we regularly help couples file their I-751 late because people often do forget about this important date. USCIS would generally accept a late filing provided that the couples had honestly forgotten about it and the underlying marriage continues to exist.
Placed in Immigration Proceedings
In addition to the late filing, our client was facing another issue of being placed in immigration proceedings. As a result of the denial of her first I-751, USCIS transferred her case to the immigration court to face deportation charges. This is standard protocol whenever the I-751 is denied or in cases when I-751 was never filed. In short, USCIS gets to review I-751 first and if denied the courts may then take another look and make a determination on the merits. Ultimately, if the immigration judge does not grant you relief, you will be deported.
We successfully moved the court to terminate the proceedings so that USCIS may render its decision first regarding the I-751.
The passing of US Citizen Spouse
With the court proceedings out of the way, the client, unfortunately, faced another hurdle when her US citizen spouse died suddenly prior to her I-751 interview. The death of the spouse by itself should not jeopardize the approval of I-751. The question of whether the marriage is bona fide continues to be the key inquiry. The I-751 joint petition would have to be converted to a waiver petition (a self-petition) at the time of the interview. Waiver petitions also apply to situations when marriage was terminated due to divorce or when the noncitizen spouse faced abuse/cruelty.
The interviewing officer agreed to convert the joint petition to a waiver petition. In light of the supporting documents in support of a bona fide marriage, our client’s I-751 was finally approved after a 6-year wait.
