If you are a permanent resident and fail to renew your permanent residence, you may be at risk of losing your permanent residence. It depends on whether you have permanent lawful permanent residence (reflected by a green card that is normally good for ten years) or conditional permanent residence. We have already covered renewal of an expired permanent 10-year green card in a previous post. This discussion pertains to the consequences of failing to remove the conditions on a green card.
Failure to File Leads to Automatic Termination
If a conditional resident fails to file an I-751 application before the expiration of his/her green card, USCIS will automatically terminate the person's immigration status. The regulation can be found in Immigration and Nationality Act (INA) Section 216 (c) (2) which states:
In the case of an alien with permanent resident status on a conditional basis under subsection (a), if-
i. no petition is filed with respect to the alien in accordance with the provisions of paragraph (1)(A), or
ii. unless there is good cause shown, the alien spouse and petitioning spouse fail to appear at the interview described in paragraph (1)(B),
the Secretary of Homeland Security shall terminate the permanent resident status of an alien as of the second anniversary of the alien's lawful admission for permanent residence.
Unfortunately, once USCIS terminates a person's status, removal proceedings will ordinarily be instituted.
Can an I-751 be filed even after the date of expiration?
It is nevertheless possible to file an I-751 out of time, whether it is a joint petition or a waiver request based on one or more of the qualifying grounds (ie., good faith marriage terminated by divorce; abuse; hardship). However, USCIS does not have to accept the application. The standard is whether there is good cause for the application being filed out of time and whether there is sufficient documentation or supporting evidence. USCIS puts it this way in their instructions: "If your failure to file was through no fault of your own, you may file your petition late with a written explanation and request that USCIS excuse the late filing. Failure to file before the expiration date may be excused if you demonstrate when you submit the petition that the delay was due to extraordinary circumstances beyond your control and the length of delay was reasonable." Typical examples of why an application may be filed late including a severe or debilitating illness, a death in the family, etc. This is a very fact and circumstance specific type of situation. There are many variables and factors that the examiner will look at, including not only the reason but also whether the delay in filing was reasonable in light of the situation. For example, if you were going through financial difficulty at or near the expiration of your green card, your case will probably have a better chance of being accepted two months as opposed to ten months after it has already expired.
Additionally, it is also worth noting, especially if you are intending on filing a waiver of the I-751 joint requirement that you file as quickly as possible-even if the request is untimely. Once and if your case is referred to the Immigration Court, the Immigration Judge will not have jurisdiction to review an initial I-751 application. The Court only has jurisdiction to review the denial of an I-751 petition, which must be filed with USCIS first.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.