Conditional permanent residents (CPRs) who gain their residency status through their marriage to a U.S. citizen or lawful permanent resident (LPR) must file Form I-751 (petition to remove the conditions on residence) within 90 days prior to the expiration of their status.
Many times, in the initial green card filing, when a marriage may have just occurred, there is very little past documentation establishing the bona fides of the relationship. The examiner in the marriage interview relies less on documentation and photos than they do on the demeanor and interaction of the couple themselves. However, when the time comes to remove the ‘temporary’ and conditional status some two years later, it is imperative to have kept and be able to go back and gather documents and things that can then be beneficial to I-751 filing. This is true for a joint filing where both parties are still living together and just as important for those couples who have separated and are divorced. If divorced, the applicant may seek a waiver of the joint filing by showing the marriage was entered into in ‘good faith’. However, this waiver is only available if the marriage was terminated. After the receipt of their green card, it is extremely important for CPRs to take note as to when it will expire because the untimely filing of Form I-751, especially without good cause, can have serious implications and/or consequences. USCIS usually informs the CPR through a notice at the start of that 90-day window. However, non-receipt of a notice will not be considered an excuse because the USCIS is not required to give the CPR any prior notice. If the CPR is still married to the U.S. citizen (spouse), then they must file Form I-751 jointly and submit documents to show the bona fides of the marriage and a continued marital union. Documents may include proof of common residence and shared responsibility, such as: a leasing agreement naming both spouses as tenants, deeds and/or mortgages in both names; combined finances and joint responsibility for liabilities - such as joint checking and savings account statements, insurance policies showing the other spouse as a beneficiary, joint federal and state tax returns or joint utility bills. Generally, I also advise clients to include periodic and recent photos of the couple with other family members or relatives, pictures of vacations since obtaining permanent resident status, recurring receipts showing the same address, and correspondence or emails to mutual friends and relatives. Of course, affidavits or declarations from family - brothers and sisters, parents, as well as mutual friends, are also useful in showing a true relationship. If the couple is divorced or if the marriage has been terminated due to the untimely death of the U.S. citizen spouse or LPR, or if the CPR was battered or subjected to extreme cruelty, then he/she must file a petition by himself/herself along with a request for a waiver of the joint filing requirement. If Form I-751 petition is not filed, then the CPR will lose his or her legal status and may be subjected to removal proceedings. Once the green card has expired, it cannot be used for travel or employment purposes. If the I-751 is filed in a timely fashion, the receipt notice will have language extending one’s permanent resident status while the petition is pending. If the deadline has lapsed but the CPR wants to submit Form I-751, he/she may file it late as long as it is filed with a written explanation as to the reason for the delay. USCIS may approve the petition as long as it you can show plausible proof, like hospitalization, death of a family member, financial difficulties, being away on active military duty, among others. Corroborating evidence should also be included. If the USCIS determines that there is a good cause for the delay, then it will proceed to adjudicate the I-751. If they are not convinced, however, the petition will be denied for failing to comply with the requirements or issue a Request for Evidence (RFE). USCIS can also refer the case to the local immigration service center for an interview. The bottom line is be aware of the date the CPR status expires. The I-751 petition should be filed within the 90 day window (prior to expiration). Although there are circumstances that allow the USCIS to forgive a lapse, it is very dangerous to do so. The two year deadline is truly a deadline! For more information about filing Form I-751, please contact Heller Immigration Law Group at 650-424-1900. __________________________________________ Paul M. Heller, Esq. (Founder/Principal) Heller Immigration Law Group – 25+ years Telephone: 650.424.1900; Direct: 650.424.1902 [email protected]; [email protected]
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On May 12, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin premium processing for cap-subject H-1B petitions requesting premium processing, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. USCIS first announced that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season.
H-1B petitioners may opt to pay an extra filing fee of $1,225.00 in exchange for premium or 15 calendar-day processing of an H-1B petition. Premium processing doesn’t guarantee a decision within 15 days. Rather, it means that action will be taken on a case within 15 days. That action may be a decision or it may be a request for evidence if the adjudicator finds something lacking in the petition. If a request for evidence (RFE) is issued, then from the date when USCIS receives the reply, another 15-day processing period will begin. For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received. For more information about H-1B Cap Premium Processing, please call Heller Immigration Law Group at 650-424-1900. __________________________________________ Paul M. Heller, Esq. (Founder/Principal) Heller Immigration Law Group – 25+ years Telephone: 650.424.1900; Direct: 650.424.1902 [email protected]; [email protected] http://hellerimmigration.com The U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap. Over 236,000 H-1B petitions were received during the filing period, which began April 1, including petitions filed for the advanced degree exemption. USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. All unselected petitions will be rejected and returned with their filing fees, unless the petition is found to be a duplicate filing.
On March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016. Petitions that are otherwise exempt from the cap will continue to be accepted and processed. Also, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:
For more information about the H-1B program, the random selection process, or alternatives to H-1B ‘capped’ visas, please call Heller Immigration Law Group at 650-424-1900. __________________________________________ Paul M. Heller, Esq. (Founder/Principal) Heller Immigration Law Group – 25+ years Telephone: 650.424.1900; Direct: 650.424.1902 [email protected]; [email protected] |
AuthorPaul M. Heller, Esq. is an acclaimed immigration attorney at Heller Immigration Law Group in San Francisco, CA. ArchivesCategories |