Impact of Significant Delays in Green Card Extensions for Conditional Permanent Residents & Filing the N-400 Application for Naturalization While an I-751 Petition is Pending

February 06, 2019
Beata Leja

Individuals who obtained their permanent residence (i.e. green card) based on a marriage to a U.S. citizen that was less than 2 years old at the time of approval are considered to be conditional permanent residents. A conditional permanent resident receives a green card valid for only 2 years and must file a separate petition (Form I-751) to remove the conditions within 90 days of the card’s expiration. Failure to timely file the petition to remove conditions could lead to losing permanent resident status and even being placed in removal (deportation) proceedings.

Significant Delays in USCIS Issuance of I-751 Receipts

The USCIS is currently taking an average of 18 months to review I-751 petitions to remove the conditions on conditional permanent residency, and in some cases much longer. As a result, the USCIS issues an I-751 Receipt Notice after the filing of the petition, automatically extending the conditional permanent residence for 18 months while the agency reviews the petition. Extensions beyond the initial 18 month extension are also available by making an Infopass appointment at the local USCIS office.

Unfortunately for conditional permanent residents, beginning in the summer of 2018, the USCIS has become significantly delayed in issuing I-751 Receipts. Many of our clients are waiting more than 2-3 months to receive their I-751 Receipt, which is causing them hardship. For example, without proof of having the automatic 18 month extension of their conditional permanent residence, many clients are finding it difficult to renew their Driver’s Licenses. Additionally, these individuals do not have requisite evidence necessary to return to the U.S. from trips abroad and to comply with I-9 employment eligibility verification for new employment.

Can My Employer Terminate Me After My Conditional Green Card Expires?

No. Your current employer should not be asking you to produce your I-751 Receipt Notice for I-9 re-verification if you presented a valid conditional green card on the date that you were hired and completed the initial I-9. Permanent residents who presented a valid green card upon hire should NOT be re-verified. The USCIS I-9 manual states that permanent residents may present the following for I-9 verification:

  • – A green card with no expiration date. Cards with no expiration date have no conditions and should not be re-verified. These cards were issued from 1977 – August 1989.
  • – A green card with a 10-year expiration date. Cards with a 10-year expiration date have no conditions and should not be re-verified.
  • – A conditional green card with a 2-year expiration date. Cards with a 2-year expiration date have conditions and should not be re-verified if unexpired when presented for Form I-9.

Therefore, if you presented a valid green card for Form I-9 purposes upon hire, it does not matter that the green card later expired. The employer is prohibited by law from re-verifying permanent residents who presented a valid green card for Form I-9 purposes upon the expiration of that card and could face civil penalties for requesting evidence of your I-751 receipt, your new green card, or even terminating you while waiting on such documents. Please note, however, that employers do need to re-verify permanent residents who presented an I-551 stamp in their passport and/or an I-751 Receipt Notice at the time of I-9 verification.

What Can I Do If My I-751 Receipt is Delayed?

First, we recommend every conditional permanent resident file their I-751 petition on the first day that they are able to do so, meaning exactly 90 days before the expiration of their green card. Second, if the USCIS has not issued an I-751 Receipt Notice beyond the expiration of the green card, we recommend doing the following:

  •  – Check with your bank to see if the USCIS has cashed $680 payment ($595 filing fee and $85 biometrics fee) for the I-751 petition. If the USCIS has cashed your checks, it will typically provide a receipt number (reference number) on the back of the cashed checks.
  • – Schedule an Infopass appointment to request an extension of your conditional permanent resident status (I-551 stamp) at your local USCIS office.

Please note that USCIS has significantly cut back Infopass availability in recent months, and you may experience difficulty in scheduling an Infopass appointment. You may be required to speak to an officer to explain the necessity of your appointment before even being allowed to schedule your appointment.

How Can I Prove that I Am Authorized to Work for a New Employer After My Conditional Green Card Expires?

A permanent resident does not have to show a green card for Form I-9 purposes in order to demonstrate that he or she is authorized to work. There are various documents other than a green card that may be accepted by an employer for Form I-9 purposes. Therefore, you could provide other proof of work authorization, such as a state ID and unrestricted Social Security card, for Form I-9 purposes if you start a new job prior to receiving your I-751 Receipt Notice.

New Interview Waiver Policy for I-751 Petitions

Furthermore, USCIS has implemented a new policy that makes it more likely that an in-person interview will be scheduled for certain I-751 petitions, further delaying the final adjudication of the petition. The USCIS will no longer require an in-person interview for the following I-751 petitions filed on or after December 10, 2018:

  • – The record contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into in order to evade U.S. immigration laws;
  • – For I-751 petitions received on or after Dec. 10, 2018, USCIS has previously interviewed the principal petitioner;
  • – There is no indication of fraud or misrepresentation in the I-751 or the supporting documentation; and
  •  – There are no complex facts or issues that require an interview to resolve.

The new policy replaces a 2005 policy which advised that interviews should be scheduled only when “there is insufficient evidence of the bona fides of the marriage” and/or “in waiver cases, [where] there is inconclusive evidence to establish eligibility for a waiver.” The 2005 policy encouraged USCIS officers to address any outstanding questions or issues in an I-751 petition through the issuance of a Request for Evidence (RFE) and promoted adjudication without an interview. The new policy, however, no longer promotes adjudication without an interview and using RFEs to resolve questions or issues.

As a result, it is now more likely that an I-751 petition will receive an in-person interview at a local USCIS office, further delaying adjudication beyond the average 18 months.

Can I File an N-400 Application for Naturalization While My I-751 is Pending?

Yes, a conditional permanent resident is able to file an N-400 naturalization application while the I-751 is pending, assuming all other requirements for naturalization are met. In the context of individuals who obtained their conditional permanent residence through marriage to a U.S. citizen, the individual must have had their conditional permanent residence for at least 3 years, and must continue to be married to and residing with their U.S. citizen spouse, amongst other requirements relating to physical presence, maintaining residence and good moral character.

On account of the significant delays in I-751 petitions, it is sometimes a wise strategy to file an N-400 application for naturalization while the I-751 petition is pending, as it tends to expedite the process. The USCIS schedules in-person interviews for N-400 applications significantly faster than the I-751. While the USCIS cannot adjudicate the N-400 naturalization application until the I-751 is approved, the USCIS is also required by law to adjudicate the N-400 within 120 days of the interview. Therefore, if you file the N-400 while the I-751 is pending, the USCIS is then required to adjudicate the I-751 quickly after the N-400 interview so that it can adjudicate the N-400 within the 120 days required by law.

Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you have questions or concerns regarding your conditional residence status or eligibility for naturalization while your I-751 petition is pending.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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