For the most of 2019, we have seen the administration tighten its policies on immigration through a series of policy changes and Attorney General rulings. Interestingly, though, USCIS issued a Policy Alert late last week that may be beneficial to conditional permanent residents who have now married someone else, particularly those whose residence has been "terminated" by USCIS and who are now awaiting court proceedings. Up until recently, the government has maintained that USCIS could not adjust the status of such a person, even if married to someone else and prima facie eligible to adjust, because an Immigration Judge needs to formally terminate that person's status (and hence, officially revoke that person's permanent residence.) This position has always created a tension with the seminal case regarding these circumstances, Matter of Stockwell, but in any case, this has been the reality for a few years now. Fortunately, USCIS appears to be relaxing this strict policy and allowing itself to adjudicate these types of cases under certain circumstances. According to the policy amendments, USCIS may now adjust the status of a conditional permanent resident whose status has been terminated by USCIS if
One disturbing trend that we have noticed recently is an inexplicable delay in USCIS issuing I751 notices acknowledging receipt of the application and extending an individual's green card. Ordinarily, a receipt notice is typically issued within four to six weeks after receipt. However, in some cases, it has been more than three months and the applicant still has not received the receipt/extension notice. In some cases, individuals have received the biometrics/fingerprint notice but not the extension notice, an interesting scenario which have led some to posit that USCIS may want to investigate/ascertain an individual's criminal history before issuing the receipt notice. Given the administration's emphasis on enforcement, there may possibly be some validity to this. On the other hand, the delay may arise not so much out of nefarious motives but simple government bureaucracy and inefficiency. In any case, regardless of the reasons, the consequences can be severe, especially for those who have waited to the last second to file or worse, attempt to file out of time. Legally, even if the government has terminated or revoked a conditional resident's status due to failure to file, that individual has a right to appear before the Immigration Court where an Immigration Judge will render a final determination. Practically speaking, however, the absence of a receipt notice can cause a great deal of confusion and havoc. For one thing, the individual has no proof verifying that an application to remove conditions has been filed. Without a receipt notice, the individual is ill equipped to prove that he or she is still legally in status (unless that person has some proof of delivery and is able to secure an I-551 stamp from USCIS). This can lead to a person losing his/her job, driving privileges, as well as inability to travel outside the country-even if an application was in fact filed-because the immigrant has no proof that his/his permanent residence has been extended while the case is being considered. Given all these horrible ramifications, it would be especially prudent for conditional residents to consider filing the I-751 as soon as practicable. For joint I-751s filed by a married couple, this usually means ninety days before the 2nd anniversary of the grant of permanent residence. For those who are eligible to file an I-751 waiver, they may even be able to file earlier. For example, those asking for a waiver of the joint requirement due to abuse may file at anytime and do not need to wait until the ninety days prior to the expiration of the card. The same goes for those who entered into the marriage in good faith that has been subsequently terminated. If an application is filed at the earliest possible stage, there may be enough time to secure the receipt notice (or alternative proof that the case is received and pending) prior to the card expiring.
Individuals who acquire lawful permanent residence through marriage are often concerned about their foreign-born children residing abroad. One common misconception is that someone who has a conditional green card must first obtain a permanent green card before filing for one's children. This is not necessarily true, and in some cases, waiting too long to file can considerably affect how long it takes for a child to immigrate here. While a conditional permanent resident is obligated to file the I-751 to remove the conditions on his/her green card, he/she is nevertheless a permanent resident and accorded all the rights and privileges of a green card holder, including but not limited to working, traveling, and filing for one's unmarried children. Depending on how old the child is, he/she will fall under preference category F2A (for unmarried children under 21) or F2B (unmarried children 21 or older). Currently, F2A cases are taking approximately 2 years to process, while F2B cases are taking approximately seven to eight years, which is appreciably longer. If a child is nearing twenty, a permanent resident may want to strongly consider filing the I-130 immediately in the hopes of getting the child here before he/she reaches 21.
For a lawful permanent resident, denial of a green card renewal application can be extremely stressful. Depending on the nature of the denial, there can be severe consequences, both direct and collateral, ranging from bearing an expired identity document to being placed into removal proceedings. At the outset, it is crucial to distinguish exactly what is being "renewed" because the nomenclature is used so loosely. A green card renewal comes up in two different contexts.
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.