“Help! My conditional green card expired over a year ago and I’ve been separated from my spouse and I don’t know what to do.” I hear this a lot.
If you are separated and you have a conditional green card, you can still file a waiver petition late (after the expiration of your two year card) even if you received a letter from CIS terminating your residency. You can even file late from outside of the US (but it may be difficult to re-enter the US until you receive an approval). So how late is too late? I had one case that was 4 years late and we were still able to get it approved, but it was based on extreme cruelty – which arguably there are more extenuating circumstances to explain the drastic display (fear of spouse, in hiding, etc.). There is no set time period that cuts off your ability to file a conditional green card waiver based on good faith marriage or on any I-751 waiver ground.
- The difficulty you will run into is finding all the documents needed to prove the initial marriage was bona fide from an immigration perspective; the longer you wait, the more outdated the financial records, pictures, and other documents become and usually the more difficult to track down.
- You also need a reasonable, documentable excuse for the late filing – you can’t just file late and hope for the best and you must affirmatively request acceptance of the late filing with your excuse. The more documentation you can provide for that late filing, the better (did you lose your job, move multiple locations, outside the US for a relative’s illness, did you suffer a dramatic loss of a loved one, get injured? Incarcerated (hope not!)?
Often, a good faith waiver or a I-751 joint petition has been denied and the immigrant never left the US after receiving the denial notice and despite being told that residency has been terminated and the immigrant is subject to removal and accrual of unlawful presence. Even in this situation, it may be possible to file late – on the same or a different waiver ground or even with a new joint I-751 filing. If it’s on the same ground, be careful because CIS will compare your old filing against the new one – so get some new arguments or evidence that wasn’t accessible before (and document that) to obtain a better chance of denial.
The ultimate catch 22 is that the longer you wait after a denial to refile will give you potentially more time to document your case but also it also runs into the problems of being at risk for removal because you are out of status. Right now, there has only been one court case where the judge held that filing a subsequent waiver or joint petition after a denial does not actually place the immigrant back into valid immigration status for purposes of unlawful presence accrual if the petition is later denied again. Only the initial I-751 filing filed late can do this according to the court. Always consult an attorney about the latest policy on this before you go forward with a late filing where you have had a waiver or joint filing denied previously.Subscribe to Attorney Heather’s Immigration Updates, a periodic email newsletter on the latest immigration issues that affect marriage and family-based immigration cases.
Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com
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