New USCIS Policy Guidance Provides Relief for Certain Applicants Filing I-751 Removal of Conditions

If you are a family-based conditional permanent resident who was issued a two-year green card based on your marriage to a U.S. Citizen, then you may be interested to know that the U.S. Citizenship and Immigration Services (USCIS) recently updated its policy guidance for Form I-751 Petition to Remove Conditions on Permanent Residence.

The new policy guidance provides new updates for the following individuals:

Conditional permanent residents who filed an I-751 petition jointly with their spouse, but are no longer married since their filing (either because of divorce or abuse)
Cases where the I-751 petition is being terminated for failure to file the application on time with USCIS or lack of evidence.

Overview

By law, your permanent resident status is conditional if you were married to a U.S. Citizen for less than 2 years on the day you obtained permanent resident status.

This means that at the end of your I-485 adjustment of status (green card) application process, you will receive conditional permanent residence (a 2-year green card) if you were married for less than 2 years at the time of the adjudication of your I-485 adjustment of status application. On the other hand, those who have been married for more than 2 years receive a 10-year green card that is not subject to conditions.

To remove the conditions on permanent resident status, conditional permanent residents must file Form I-751 Petition to Remove Conditions on Permanent Residence within the 90-day period before the expiration of their green card status. The I-751 petition must be filed jointly with your U.S. citizen spouse, or you must qualify for a waiver of the joint filing requirement if you are no longer married.

It is critical for the I-751 petition to be filed within the 90-day window preceding the expiration of your conditional resident status, otherwise if it is not timely filed USCIS generally considers the Form I-751 abandoned and rejects the Form I-751 petition. Additionally, conditional permanent residents who do not timely file their petitions, could be at risk of losing their immigration status, and be subject to removal or deportation.

What does the USCIS policy update say?

Conditional Permanent Residents

Under the new policy guidance issued by USCIS on December 12, 2023, the agency has clarified that a noncitizen whose conditional permanent resident (CPR) status was terminated for failure to timely file a Form I-751 within the 90-day window preceding their green card’s expiration, may be eligible to adjust their status to permanent residence on a new legal basis.

This is true even if USCIS issues a notice of termination of conditional permanent resident status before the noncitizen files the new Form I-485, Application to Register Permanent Residence or Adjust Status.

This policy gives conditional permanent residents who have failed to file their I-751 petition on a timely basis, the opportunity to salvage their immigration status if they qualify for permanent residence on a new legal basis.

For example, spouses who have been subject to abuse or extreme cruelty during their marriage may apply for permanent residence under the Violence Against Women Act (VAWA). Others may be eligible to file under an employment-based category depending on the facts and circumstances of the case.

This policy is effective immediately and applies prospectively to applications filed on or after December 12, 2023.

Opportunity to Amend from a Joint Petition to a Waiver

Additionally, if you filed your I-751 petition jointly with your spouse but are no longer married (because of divorce or abuse), the guidance clarifies that such conditional permanent residents have the opportunity to amend the basis for their original filing from a joint petition to a waiver.

For example, a petitioning U.S. Citizen spouse may withdraw support from the joint petition because the spouses have divorced or are in the process of divorcing. Therefore, USCIS gives the conditional permanent resident the opportunity to amend the basis for filing from a joint petition to a waiver.

Conclusion

If you have lost your conditional permanent resident status for failure to submit the I-751 petition on time, we encourage you to discuss your circumstances with an experienced immigration attorney who can evaluate whether you have a basis for a new filing.

Conditional permanent residents with a pending I-751 petition filed jointly with their spouse, who are no longer married, should also discuss this change in circumstances with an attorney. Based on the new guidelines, you may have the opportunity to amend your original filing to seek a waiver of the joint filing requirement.

Contact Us. If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

Helpful Links

JOIN OUR NEW FACEBOOK GROUP

Need more immigration updates? We have created a new facebook group to address the impact of the new executive order and other changing developments related to COVID-19. Follow us there.

For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.