When Should I File Form I-751?

Most conditional lawful permanent residents seem to know that U.S. Immigration law requires them to file their joint I-751 petition within the 90 day period (window) immediately before their conditional residence expires. This is something that conditional residents learn when they go through the process of obtaining conditional residency. While this rule seems easy enough to follow, unfortunately for some conditional residents unexpected events and circumstances make it impractical or impossible for them to file the I-751 within this window. Fortunately, however, all is not necessarily lost, as there are several situations where the I-751 can be filed outside of the 90-day window and still be deemed timely under the law.

Filing the I-751 outside of the 90 Day Window.

Whether an exception will apply to you and whether you will be allowed to file your I-751 outside of the 90-day window will generally depend upon one thing: whether your U.S. citizen or permanent resident spouse will be joining you in the filing of your (joint) I-751 petition.

Joint Petitions. If your spouse will be joining you in the filing of the petition, then you must file within the 90 day window and the only way that you can file the petition outside of that window is if you can demonstrate that there were extraordinary circumstances beyond your control (which prevented you from filing) and the delay was reasonable. In short, you are claiming that the failure to file on time was through no fault of your own.

According to guidance from the USCIS, examples of what would constitute an extraordinary circumstance beyond your control include but are not limited to situations where:

• You or a family member have been hospitalized or are suffering from a long term illness;
• You have suffered the loss of a family member;
• You have been experiencing financial problems
• You are caring for someone else
• You are grieving over the death of a family member (Bereavement0
• You have encountered a serious family emergency
• You have been occupied with a work commitment
• You have a family member on active duty with the U.S. military

It should be noted that the additional requirement here is that the delay was reasonable. Thus, in these cases, I always counsel my clients to act with due diligence and file as soon as possible under the circumstances. It is also recommended that petitioners who are filing joint petitions outside of the 90-day window include a sworn statement (from both spouses) which provides an explanation as to why the petition is filed late and which covers the extraordinary circumstances in detail, along with documentary evidence that supports the explanation (which may include sworn statements from third parties).

Waiver Petitions. If your spouse will NOT be joining you in the filing of the I-751 petition, then there are several circumstances that would allow you to file a petition by yourself (without your spouse joining). These are referred to as “Waiver” petitions, as you will be asking USCIS to waive (or excuse) the requirement that your spouse joins you in the filing of the petition.

As long as the specific conditions for each Waiver are met, ALL of these petitions may be filed AT ANY TIME after you are granted conditional resident status and before you are removed from the United States. This means that you may file these Waiver petitions outside of the 90-day filing window that applies to joint petitions.

1. The Good Faith Marriage Waiver. In order to qualify for the Good Faith Marriage Waiver, you have to show that you entered into your marriage in good faith, but that it was terminated, either by divorce or through the death of your spouse. If the petitioning spouse has died, must submit a death certificate. Importantly, where divorce is involved, eligibility for this Waiver may only be established AFTER the divorce is final and the decree has been entered by the court. EXCEPTION: The April 3, 2009 Memo from Acting Associate Director Donald Neufeld (discussed in my prior blog post HERE) actually provides a window of opportunity for spouses who are divorcing, but whose divorce will not be final before the expiration of their 2 year conditional residence period. According to the Neufeld Memo, if a USCIS officer encounters a Good Faith Marriage Waiver Petition filed by a spouse who is NOT YET DIVORCED, then USCIS policy requires the officer to issue a Request for Evidence (RFE) granting the applicant 87 days to produce a copy of the final decree of divorce. Thus, as long as the applicant is able to finalize the divorce and provide a copy of the final decree before the 87 day response period expires, the officer must process the waiver petition just as if the divorce was finalized before the waiver petition was filed. The obvious benefit of this early filing is that it allows the petitioner to maintain continuity of residence (and employment authorization) without any lapse or expiration of status. And due to current (2019) processing delays, there is a substantial chance that it will take several months (if not longer) before USCIS even issues the RFE which will start the 87-day clock. This offers a tremendous amount of time flexibility, especially for Petitioners who live in States that have “cooling off” periods or other restrictions on their ability to obtain a quick divorce.
2. Abused Spouse Waiver. In order to qualify for the Abused Spouse Waiver, you must show that you entered into your marriage in good faith, but that you or your conditional resident child was then subject to abuse by your spouse. Note that this Waiver may be filed by a conditional permanent resident child, without the joinder of the parent.
3. Extreme Hardship Waiver. In order to qualify for the Waiver based upon extreme hardship, you will have to show that termination of conditional residence would cause extreme hardship to you. Interestingly enough, you DO NOT have to show that your marriage was entered into in good faith in order to qualify for this waiver; although, in my practice, I would always strive to show that the marriage was entered into good faith anyways, as approval of Waiver petitions are discretionary and I want to show as many favorable factors as I can for my clients.

Note that since these three Waiver petitions may be filed at any time after you are granted conditional resident status that, if you qualify and meet all of the conditions of the Waiver, you can actually file the Waiver petition BEFORE the 90-day window.

Finally, it is also important to note that Waiver Petitions are just I-751 petitions that are filed only by the foreign national spouse where that petitioning spouse checks Part 3, Waiver or Individual Filing Request 1(c) through 1(g). I make this point specifically to clarify confusion that seems to exist over whether there is a separate “Waiver” form or application that has to be filed in order to request one of the 3 Waivers.

If you need legal assistance with the filing of your I-751 Petition to Remove Conditions on Residence or have any have questions about the timing of filing your I-751 petition, contact South Florida Immigration Lawyer Sean D. Hummel and schedule a consultation: (954) 385-3111.