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If you’ve been granted legal resident status within the United States on a conditional basis after filing for residence based on marriage to a U.S. citizen, your status will automatically terminate after two years. You must, in order to change your status to permanent U.S. resident and avoid having to leave the United States, submit immigration Form I-751, Petition to Remove the Conditions of Residence, to U.S. Citizenship and Immigration Services (USCIS). If, after receiving and reviewing your I-751, USCIS isn't convinced that your marriage is the real thing and you meet the various other criteria for U.S. residence, it may issue a denial.
The problems usually leading to USCIS denying your petition include:
- late submission of the I-751
- insufficient documentation to convince USCIS that you meet the requirements for permanent residence, and
- underlying problems in the claim, such as a fraudulent marriage that has fallen apart.
Late Submission of Form I-751
This application has a strictly enforced time frame in which it may be filed with the USCIS, namely up to 90 days before the expiration date of your conditional residency. If you file early, the petition will be sent back to you for later filing. (This isn't really a denial -- it just means USCIS wouldn't even let your application in the door.)
If you file late, however, your I-751 will be immediately rejected and your case referred to immigration court for removal proceedings. You will receive notification, including an explanation as to why the application was denied. Talk to a lawyer immediately.
You will be required, in order for your application to be approved, to show that your marriage is, in fact, legitimate and ongoing -- or that, if the marriage has ended, you qualify for a waiver.
You'll need to carefully assemble and choose documents to support your claim.
For example, if you're still married and are filing jointly with your U.S. citizen spouse, you'll want to provide copies of things like your children's birth certificates, apartment lease or property ownership deed showing both you and your spouse’s names, copies of any bills related to the ownership of that property (such as utility or electric bills), as well as financial statements that show joint checking or savings accounts.
Take a careful look at these documents before submitting them. Make sure they clearly show both your names (if not on each document, then in combination when reviewing all the documents).
Also make sure the documents cover the appropriate time period, namely the two years (or almost two years) since you were approved for conditional residence. Some couples make the mistake of submitting the same documents they did when first getting their residency, such as wedding pictures. USCIS isn't interested in these at this point -- it wants to know what's been going on for the last two years and to make sure you haven't just split up and are faking the marriage.
Of course, some applicants really don't deserve U.S. residence, because their marriage is fraudulent. If this is the case, you can expect a denial at this point -- or to have your case reexamined in a few years when you apply for U.S. citizenship.
But fraudulent marriages aren't the only reason a case may be denied. For example, you must be fingerprinted (biometric testing) as part of your I-751 application process. The prints will be used for a crime check by the FBI. If you are discovered to have a criminal record, you may be found inadmissible to the United States, and your permanent residence denied.
Preparing the documentation for an I-751 requires careful work, and you might want to hire an attorney to help, in order to avoid the possibility of denial. This is especially true if you won't be filing jointly with your U.S. citizen spouse, but will need to request a waiver.
Can You Appeal a Denial?
If your case is denied, you will receive a letter from USCIS explaining the reason for the decision. That letter will also include a Notice to Appear (NTA) in immigration court for removal proceedings. (See 8 C.F.R. 216.4(d)(2).)
No Right to Appeal
Unfortunately, immigrants do not have the right to appeal a denial of their I-751 application -- at least not in the strict legal sense of the word “appeal,” which usually means that your case is reviewed by a higher court or body based on written materials. But you will have a chance to present your case again before the immigration judge, as you defend yourself against removal from the United States. If all goes well, the judge may grant you permanent residence. But be sure to get a lawyer’s help with this.
Also, if the reason for the denial was that you failed to turn in your Form I-751, you may be able to avoid removal proceedings altogether, by acting quickly. If you can get your I-751 turned in before your case is transferred to the immigration court, and you supply a good reason why you were late (backed up by documentary proof), your case may be approved without having to go to court.
See a Lawyer
You should immediately hire an immigration lawyer to help you deal with the denial of your Form I-751 or if you're confused by USCIS's requests for additional documents. The lawyer will analyze your case and explain your options.
Make sure to find a lawyer long before the court hearing date that USCIS sets for you. The lawyer will need time to review your case, suggest documents that you should collect, and perhaps help your friends and other contacts prepare affidavits supporting your claim for permanent residence.
Whatever you do, don’t miss your court date. Failure to attend will result in an automatic order of removal from the United States (deportation).