I know that it can take a year to remove conditions, and we have 6 months left until my husband's green card expires. Does anything prevent us from applying now? We have been married for 2.5 years.

no, you can not apply early... you have to apply inbetween the 90 days and the day the card expires.. no sooner or no later...

If you apply earlier they will send your packet back.

You can apply, but they will send your packet back to you.

While you wait, you can use the expired green card and the NOA (extension) as proof of legal status, for work and travel.

I'm not sure if it was a one-time error by CIS or whether they really are now accepting I-751s up to six months (instead of 90 days) before the GC expiration, but this guy filed well before 90 days: http://www.visajourney.com/forums/index.php?showtopic=111849. According to him, CIS's recorded message now says six months despite the website still saying 90 days. I have no idea if this is so, but CIS never returned the petition to him despite the ostensible early filing.

James, interesting.

This conversation reminds me of one I overheard at the Newark DO while waiting for our Infopass appointment. This woman didn't have proof of her status and she asked the lady behind the counter (USCIS employee) whether she could still fly home to Russia tomorrow since she already had tickets. The lady said "if you got the tickets I guess you gotta fly". The Russian woman then asked, but I don't have proof of status, is that ok? The USCIS lady goes "hey, I didn't tell you to get the ticket, but since you have it, I guess you gotta go, right?". The Russian woman looked confused. I am sure she wanted to know if she can return, while the USCIS lady was being deliberately obtuse about it.

Yes, I remember the post. If someone wants to send it earlier than the 90-day window, it is his/her own choice. But the website still says it should be filed in that 90-day time period.

Try it, report the results here.

Anecdotal evidence suggests that it works.

The law says you can't file it early.

From INA 216, section (D) (2):

(A) 90-day period before second anniversary.-Except as provided in subparagraph (B), the petition under subsection ©(1)(A) must be filed during the 90-day period before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence.

That's not to say that no petitions could ever slip through the checks and be accepted anyway, but if an office does accept such a petition, it's accepting it without having the legal authority to do so. I"m not sure if that might make your future status subject to question in any way, but that's certainly a risk I wouldn't want to take.

When we submitted (nov 2007), my lawer told his paralegal to make sure the package does not go 1 day earlier. But I have read some recomendations on other sites-and the lawers are talking about 6 months window. First, I thought it was a typo because all other info lawer said made sense. But now-maybe there is been some update into law. You are not loosing much by sending earlier-only shipping cost

The instructions still say that I-751 must be filed in that 90-day period.

There has NOT been an update to the law. An update to the law would require an Act of Congress, literally. Both houses of Congress would have to agree to the update, and then the President would have to sign it into law (or veto it and have his veto overridden). It takes many months for a bill to go through committee, be debated, be agreed to by both houses, etc. During the many months, all the news sources that cover anything related to immigration will discuss the debate.

In other words, the Immigration and Nationality Act doesn't change before we know about it.


You MIGHT lose much more than a bit of postage by sending it earlier. If you read the case law (some decisions are available here from the USCIS), you'll occasionally find cases where a person's status is questioned after the fact. Sometimes, if the immigrant made a procedural mistake and the USCIS didn't catch it when it happened, the law can be enforced against the immigrant at a much later date, sometimes when it's too late to correct the error.

The nightmare scenario is that they accept your I-751 when you file it, and it waits for 9 months to be adjudicated, and then the adjudicator says "hey, this is not approvable because it was never filed within the correct window -- I'm going to deny it". You as an immigrant might be able to appeal to someone's sense of justice, but as far as I can tell, I don't believe the law will be on your side.

I don't know what the likelyhood of later problems is. For all I know, there might even be a provision hidden somewhere in the law that absolves the immigrant of any responsibility if the USCIS makes this particular error. That would certainly seem reasonable and just, but I know there's no such law generally -- immigrants are often penalized severely and unfairly for USCIS errors.

And in the scenario we're talking about, it's the immigrant's error that starts the cascade of problems -- the law clearly does require the immigrant to file within the correct timeframe.

If you think I'm overreacting and being overly conservative, feel free to ignore this whole post. I'm not a lawyer, and I could very well be completely wrong here.

But I still think the safest thing to do is to file during the window when the law says you're supposed to file.

Lucyrish, what you are saying make sense. We are always held responsible for gov errors somehow. However, I don't think that procedurial norms need an Act of Congress. Gov Agencies have authority to enact regulations over their subject matter (I am more familiar with FDA and know how it works regarding licenses for medicines. No need to update through Congress. During the last 30 years, Congress ammeded Federal Code (for drugs and food) maybe 20 times. But new regulations are issued all the time, and for us rules/regulations are law). Regulations and statutes are the law (sometimes in conflict-so, judge have to say here that statute prevails over agency rule). 6 months or 90 days window-most probably it is up to USBIS to decide without Congress involvment (otherwise, there has to be a special public law number regarding this procedure). I am not a lawer, but know that it would be up to FDA to decide on such procedurial matter (with public debate, of course). If I am to file I-751 now-I would call/research. It would be nice to have 6 mo instead 90 days.

I already quoted the statute which Congress wrote where Congress says that you must file within the 90 day period.

Yes, agencies may write regulations to fill in details of procedures, but the regulations must not conflict with what Congress wrote into the statute. Only Congress is allowed to change what Congress said.

And in this case, the latest regulations are also available on line, and yes, the regulations also say the petition must be filed within the 90 day period.

From 8 CFR 216.4:

a) Filing the petition -- (1) General procedures . Within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained permanent residence, the alien and the alien's spouse who filed the original immigrant visa petition or fiance/fiancee petition through which the alien obtained permanent residence must file a Petition to Remove the Conditions on Residence (Form I - 751) with the Service.

(6) Termination of status for failure to file petition . Failure to properly file Form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent residence status and the initiation of proceedings to remove the alien from the United States. In such proceedings the burden shall be on the alien to establish that he or she complied with the requirement to file the joint petition within the designated period. Form I-751 may be filed after the expiration of the 90-day period only if the alien establishes to the satisfaction of the director, in writing, that there was good cause for the failure to file Form I-751 within the required time period.

I cut things a bit; I encourage anyone interested to read the full 8 CFR 216.4 on the USCIS website.

Hey guys,

Wouldn't the only exception to the 90 day rule (and it wouldn't really apply here) is when the foreign spouse has got divorced in the 2 year conditional GC period. Then as soon as the divorce is final you can apply and that could be prior to the 90 day period.

Paul

Yes, I can see that the last version is Jan 2008-so, prob it is still 90 days. By the way, CFR is code of federal regulations (FDA does it in title 21-which I know by heart; so, looks like homeland security responsible for title 8). Usually, it does not go through Congress. Agency publishes new rule/regulations in fed register (but usually we/companies know well in advance that new rule will be bublished) , then public debate/opinion, then revised/goes in effect and amended CFR gets published. It is not a statute (which has to go through Congress-commitee, both hauses, floor debate, president...) but has the same power (at least, that is how it gets done in FDA). I might need to check-been long time since I had to learn this. One more thing, quite often regulations conflict with other regulations and less with statutes (they are just so general).