CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT : Korean

LOCATION: Virginia

ISSUE: I-751 Application Pending Divorce Proceedings

We initially met our client in our Washington DC office when she scheduled a consultation with our office. She is from Korea who came to the United States in the 90s, and has maintained her F-1 status throughout until she married a U.S. citizen in 2006. Through her marriage with a U.S. citizen spouse, she obtained a 2-year conditional green card in May of 2008.  Therefore, her conditional residency was scheduled to terminate in May 2010.  To comply with the immigration requirements, our client and her husband filed an I-751 Joint Petition to Remove Conditions in March 2010. 

Unfortunately, their marriage ended in September 2010.  Moreover, our client received the Request for Evidence immediately after her husband initiated divorce proceedings. Eventually, our client contacted our office and retained us to assist her response to her Request for Evidence (RFE).

According to an April 9, 2009 USCIS Memorandum by Director Neufeld, “USCIS may not deny a petition solely because the spouses are separated and/or have initiated divorce or annulment proceedings…  If a Service Center ISO encounters an I-751 petition jointly filed by co-petitioners who are still married but are in divorce proceedings, the ISO issues the Conditional Permanent Resident (CPR) a Request for Evidence with an 87-day response period.  In the RFE, the ISO specifically asks the CPR to provide a copy of the final divorce decree along with a request to have the joint filing petition treated as a waiver petition.  This affords the CPR an opportunity to provide evidence that the proceedings have been finalized and it affords the CPR an opportunity to request a waiver to the joint filing without refilling.”

Based on this Memorandum and with various supporting documents (over 20 exhibits and an affidavit over 5 pages) to demonstrate their bona fide marriage, on October 15, 2010, our office promptly filed I-751 Response to RFE and Request to convert joint filing to I-751 with waiver of the joint waiver requirement pursuant to the Neufeld April 3, 2009 Memorandum for I-751 Applications pending divorce proceedings. 

On January 6, 2010, USCIS approved our request for the removal of conditions on her permanent resident status without even an interview. Now, she has her ten-year green card.

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CASE: I-751 Late Filing For Good Cause Approval
ISSUES: Late Filing; Establishing Good Cause for Failure to File
LOCATION: Boston, Massachusetts

Our client is a Filipino national living in Boston who was on a 2-year conditional green card. She got her green card based on a bona fide marriage with her U.S. Citizen husband. She and her husband jointly filed an I-751 to remove conditions on a green card prior to its expiration in July 2009. This was in order to get her 10-year green card. However, as they were not represented by counsel, she missed the requirement of having to  provide the biometrics fee for her daughter, who was also a conditional resident as a derivative. In early August 2009, after the expiration date of the 2-year conditional green card, the application was returned since they missed the biometrics fee. Since the letter appeared to only request for the fee, they responded  and re-filed the application with the addition of the requested biometrics fee without any explanation for the “late filing”. As mentioned, the conditional residence status expired in late July. The checks were cashed and they were eventually issued with a receipt notice and fingerprint appointment. Everything it seemed went well as they received letters from the Immigration Service stating that their status was extended for a year while the I-751 was pending. However, in January 2010, the I-751 was denied due to “late filing”. Our office was consulted after this and we suggested a re-file of the I-751 with a letter and supporting documents arguing that there was good cause for failure to file. We argued that the August 2010 letter appeared to be a Request for Evidence and that it is reasonable for a couple with no legal representation to think there was no need to provide an argument for “late filing” when they re-filed the I-751. We also attached proof of bona fide marriage and cited the specific law which allows for this late filing. On June 27, 2010, the I-751 was finally approved and our client’s 10-year green card was issued.

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