Why I-751 Applications Are Denied - And What You Can Do About It

If you’ve been granted legal resident status within the United States on a conditional basis after filing for residence based on marriage to a U.S. citizen, you must, after two years, submit immigration Form I-751, Petition to Remove the Conditions of Residence, to U.S. Citizenship and Immigration Services (USCIS).

By , J.D.

If you've been granted U.S. legal resident status on a conditional basis after filing for residence based on marriage to a U.S. citizen, your status will terminate after two years unless you take follow-up action. You must, in order to change to permanent U.S. resident status and avoid having to leave the United States, submit immigration Form I-751, Petition to Remove the Conditions of Residence, to U.S. Citizenship and Immigration Services (USCIS).

Unfortunately, USCIS could, after receiving and reviewing your I-751, issue a denial. Broadly speaking, it would do so if it isn't convinced that your marriage is the real thing and you meet the various other criteria for U.S. residence. More specifically, the problems usually leading to USCIS denial of an I-751 petition include:

  1. late submission of the I-751
  2. insufficient documentation to convince USCIS that the immigrant meets the requirements for U.S. lawful permanent residence, and
  3. underlying problems in the claim, such as a fraudulent marriage, particularly as evidenced by it having fallen apart.

We'll discuss all three issues here, and explain how to avoid them.

Denial for Late Submission of USCIS Form I-751

The I-751 has a strictly enforced time frame in which it may be filed with USCIS, namely up to 90 days before the expiration date of the immigrant's conditional residency. If you file too early, USCIS will send the petition back to you for refiling later. (This technically isn't really a denial, it just means USCIS wouldn't even let your application in the door.)

If you file late without qualifying for some exception, however, your I-751 will be immediately rejected and your case may be referred to immigration court for removal proceedings. You will receive notification, including an explanation as to why the application was denied. Talk to a lawyer immediately. Also see Submitting Late Form I-751, Petition to Remove Conditions on Residence.

Denial for Insufficient Documentation of Bona Fide Marriage With the I-751

You will be required, in order for your application to be approved, to show that your marriage is, in fact, legitimate, bona fide, and ongoing; or that, if the marriage has ended, you qualify for a waiver of the joint-filing requirement.

You'll need to carefully assemble and choose documents to support your claim.

For example, if you're still married and are filing jointly with your U.S. citizen spouse, you'll want to provide copies of things like your children's birth certificates, apartment lease or property ownership deed showing both you and your spouse's names, copies of any bills related to the ownership of that property (such as utility or electric bills), as well as financial statements that show joint checking or savings accounts.

Take a careful look at these documents before submitting them. Make sure they clearly show both your names (if not on each document, then in combination when reviewing all the documents).

Also make sure the documents cover the appropriate time period, namely the two years (or almost two years) since you were approved for U.S. conditional residence. Some couples make the mistake of submitting the same documents they did when first getting their residency, such as wedding pictures. USCIS isn't interested in these at this point. It wants to know what's been going on for the last two years and to make sure you haven't split up and are faking the marriage.

Denial Based on Underlying Ineligibility for Marriage-Based U.S. Permanent Residence

Of course, some applicants really don't deserve U.S. residence, in most cases because their marriage is fraudulent. If this is the case, you can expect a denial at this point or to have your case reexamined in a few years when you apply for U.S. citizenship.

But fraudulent marriages aren't the only reason a case may be denied. For example, you must be fingerprinted (biometric testing) as part of your I-751 application process. The prints will be used for a crime check by the FBI. If you are discovered to have a criminal record or a history of certain immigration violations, you may be found inadmissible to the United States, and your permanent residence application denied.

Preparing the documentation for an I-751 requires careful work, and you might want to hire an attorney to help, in order to avoid the possibility of denial. This is especially true if you won't be filing jointly with your U.S. citizen spouse, perhaps due to death, separation, or divorce, but will need to request a waiver. (It might also help you to read I-751 Waiver for Conditional U.S. Residents in a Divorce or Filling Out Form I-751 With a Waiver Based on Abuse or Battering or Filling Out Form I-751 With a Hardship Waiver.)

Can You Appeal USCIS's I-751 Denial?

If your case is denied, you will receive a letter from USCIS explaining the reason for the decision. That letter will also include a Notice to Appear (NTA) in immigration court for removal proceedings.

Unfortunately, immigrants do not have the right to appeal a denial of their I-751 application; at least not in the strict legal sense of the word "appeal," which usually means that your case is reviewed by a higher court or body based on written materials. But you will have a chance to present your case again before the immigration judge, as you defend yourself against removal from the United States. If all goes well, the judge may grant you U.S. permanent residence. But be sure to get a lawyer's help with this.

Also, if the reason for the denial was that you failed to turn in your Form I-751, you might be able to avoid removal proceedings altogether, by acting quickly. If you can get your I-751 turned in before your case is transferred to the immigration court, and you supply a good reason why you were late (backed up by documentary proof), your case may be approved without having to go to court.

How a Lawyer Can Help With I-751 Issues

A denial means you've got few chances left to preserve your U.S. green card, so it's worth immediately hiring an immigration lawyer to help. That's even more true if you're confused by USCIS's requests for additional documents. The lawyer will analyze your case, explain your options, and help prepare a compelling case for USCIS or the immigration judge.

Make sure to find a lawyer long before the court hearing date set for you. The lawyer will need time to review your case, suggest documents that you should collect, and perhaps help your friends and other contacts prepare affidavits supporting your claim for permanent residence.

Whatever you do, don't miss your court date. Failure to attend will result in an automatic order of removal from the United States (deportation).

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