9 Common Questions by Conditional Residents Held in Limbo

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Our immigration system is constantly evolving. Updates are made seemingly on a daily basis, attempting to address challenges and reflect new priorities. In 1986 as part of the Reagan Administrations immigration reform bill, Congress enacted what is our current framework for marriage-based permanent residence requirements.  One such requirement was the enactment of a 2 year  “conditional“ greencard for immigrants whose marriage upon which the greencard is based is less than 2 years old at the date of approval. Form I-751, Petition for Removal of Conditions on Permanent Residence is required to be filed to USCIS within 90 days prior to the expiration of their conditional residence and once approved immigrants are then granted “permanent” permanent residency.

Just a few years ago, the process looked something like this: 1) I-751 is filed just before the conditional residence expires 2) USCIS issues a receipt notice within a week or two (which extends their residence for a year) 3) 4-6 months later the applicant receives an approval notice and a permanent greencard in the mail, or an interview notice and a decision is received shortly after that.

Today the I-751 process may look more like this: 1) I-751 is filed with USCIS 2) USCIS does not process the receipt notice for several months if lucky 3) After almost two years of waiting, an interview notice comes in the mail and a decision I-751 soon after that, if you’re lucky. Today, USCIS processing times are 15-19.5 months, which means conditional residents are waiting for their Form I-751 and for permanent residency almost as long as they have been conditional residents. Although Congress intended conditional residency to last a period of 2 years, with their ever-increasing delays USCIS has, by all intents and purposes, circumvented Congress, extending this period to 4 years or more.

But don’t take our word for it – USCIS has published historic processing times that show this increase over time. https://egov.uscis.gov/processing-times/historic-pt

 

These delays frustrate and confuse applicants (particularly those that get their legal advice from friends who “had the same case”), but our clients raise many questions that we receive every day. Here are some of the frequently asked questions we receive:

1)      What are the requirements for the I-751

USCIS’s instructions for the Form I-751 specify in depth, but the main focus of this form is to show that the marriage upon which the greencard application was based is bona fide. Therefore, documents in support of marriage is the focus here.

 

2)      How long does it take?

Current processing time as of May 6, 2019 is between 15 and 19.5 months. However, this is only average as it could take less or more time.

 

3)      Where is my receipt notice?

Keep checking your mailbox and your bank account to see if your filing fee check was deposited. Receipt notices should only take a couple weeks, but we have found USCIS has been delaying the issuance of the receipt. If your check was deposited but the receipt notice has not been delivered, ask your bank for a copy of the cancelled check to locate the receipt number which may be printed on the check. Otherwise you will need to inquire with USCIS, and it could take several attempts and a lot of patience before it arrives.

 

4)      How can I renew my driver’s license or travel abroad if my greencard is expired?

Your I-751 receipt notice provides for a temporary extension of your permanent residency for a period of 18 months (recently increased from 12 months). You can use this original document to travel and to renew your driver’s license. If your document is expiring and your Form I-751 is still pending, you will need to schedule an infopass appointment at your local USCIS field office (this is now done by phone using USCIS 1-800 number) to get a stamp in your passport. This stamp will serve as your temporary greencard until your Form I-751 is adjudicated.

 

5)      Can I expect an interview?

Most if not all cases are getting scheduled for interviews at the local USCIS field office. Be prepared with additional, updated evidence in support of marriage as well as any of the other documents requested on the interview notice.

 

6)      What if I got divorced?

If you have not yet filed your Form I-751,you do not need to wait for the 90-day window to file. You will need to file Form I-751 requesting waiver of the joint filing and make sure to have evidence of your bona fide marriage. If you have already filed your Form I-751 and it’s currently pending, you will need to update this Form to reflect your divorce. We recommend you contact an experienced immigration attorney to assist you with this request.

 

7)      What if I miss my interview?

It’s imperative you keep your address up to date with USCIS and that you check your case status often. If you miss your interview you need to contact USCIS ASAP to request another date. This is tricky and it may help to have an experienced immigration attorney advise you. Your case could get denied for failure to appear to a scheduled interview.

 

8)      What happens if my case is denied?

If your Form I-751 was denied by USCIS, it will get referred to an immigration judge where he/she will review the application and make a new decision. If the I-751 was filed jointly and you are not divorced and requesting a waiver, you may file a new Form I-751 with USCIS even if your case is before an immigration judge in removal proceedings.

9) What if I am eligible to apply for citizenship but my Form I-751 is still pending. Can I file an application for naturalization if I am still a conditional resident?

Yes, you can. If you are eligible you can file a Form N-400, Application for Naturalization even while the I-751 is still pending. The I-751 would need to be approved before or at the same time as the N-400. In the past, when USCIS scheduled an N-400 interview we could always count on the Form I-751 getting addressed then. Lately we have found that at the N-400 interview, the two files had not yet been consolidated and they would delay issuing a decision until they can review the I-751. However if your N-400 has been delayed after an interview, you have options under the law that will ensure a decision is made within a reasonable time. You should contact an experienced immigration attorney to address N-400 delays, whether it is due to a long-pending I-751 or any other reason.

 

Having to deal with USCIS can be frustrating but it makes the destination that much sweeter when this journey is navigated successfully. The attorneys at Kuck Baxter Immigration are here to help guide you through this journey, and we look forward to helping you.

About the Author

Hiba Ghalib

Attorney

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