USCIS has issued a new policy memorandum that provides guidance to USCIS officers on waiving interviews for I-751 cases. Under the Immigration and Marriage Fraud Amendments of 1986, immigrants who have been married for less than two years to their petitioning spouse at the time their case is approved are granted "conditional green cards." To remove these conditions, immigrants must file the I-751 petition, normally together with their spouses, but in some cases, alone with a waiver request. Over the last two years, we have seen an uptick in I-751 cases being scheduled for interviews, even for cases which are clearly approvable and devoid of any issues-which therefore makes the timing of this new guidance intriguing. In any case, the new policy is overall positive and may help to expedite the processing of I-751 cases (which are currently taking close to 18 months and in some cases, longer) by allowing officers to dispense with interviews under certain circumstances.
One aspect of the I-751 Extreme Hardship waiver that conditional green card holders should be aware of is that divorce is not a prerequisite in order to file under this ground. Whereas a conditional resident who intends on filing for the good faith marriage exception must ordinarily be divorced before filing the I-751, an individual who wishes to self-petition based on hardship can still be married to the spouse who originally petitioned for his/her green card. For example, it is not uncommon for a conditional resident to find him/herself in a situation where the US citizen /lawful permanent resident spouse refuses to cooperate or join in the I-751 petition to remove conditions. The couple may be experiencing marital difficulty, maybe even considering divorce, but no concrete steps have been taken towards a dissolution of the marriage. In this particular type of instance, especially if the green card is about to expire, the conditional resident would not be eligible to file under the good faith marriage exception because that waiver generally requires the divorce to be finalized. (There are limited exceptions where USCIS may accept the waiver if a divorce is in progress, but that is beyond the scope of this discussion.) If, however, the conditional resident can demonstrate extreme hardship, he/she may be eligible to file the I-751 on this ground.
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.