You don't need a waiver, but you do need to file. Explain that you were expecting to receive notification of the need to file and did not realize until now that such instructions are not coming. Personally, I would not use a lawyer as that would delay filing even later than you are and may cause you more hardship in the long run. Download the I-751 form, get photocopies of all of your evidence, write your letter addressed to USCIS and sign it from the two of you, and get it into the mail asap. Make this your priority and try to get it into the mail tomorrow or the next day. Generally, from my understanding, you probably have a 60 day 'grace' period but not much more than that. Apologize profusely in your letter and ask them to accept the application even though it is late. Use a personal cheque for the filing fee as you will be able to see when it is cashed. Once it is cashed you can feel pretty comfortable that your application has been accepted. Good luck - and don't waste any more time - get that application in!

I believe in your case you file an I-756 instead of a 751? or did I misread?

The document that we received with her card states that we need to file a 751 as this request is by marriage to an American citizen.

Thanks for the speedy response.

Since we just discovered all of this yesterday (Sunday), I do not have the evidence. Do you think I should file it without the evidence and then send the evidence in a couple of days once we get it all together (need affadavits).

My wife thinks we need to go to the San Antonio USCIS office but I am fearful of doing that.

I have completed the I-751 and can send a check tomorrow.

Do you have any hard evidence of a possible 60-day grace period? This is the first I have heard of such since I began searching the web yesterday.

I agree that telling them the truth that it was simply an oversight instead of concocting an excuse as my wife has suggested would be better.

I know that. But you typed in your original post "I-765", that's what got me curious.

I agree with Cassie. Take the extra day or two to make sure you have the evidence to submit with it. Don't worry too much about the affidavits if that will take too long. You need to get the application submitted and it has to have evidence with it. If you need to submit more evidence they will send an RFE. You can start preparing for that after you get the application in the mail. It is better to have it accepted and get an RFE than have it turned back. I will try to find the information about the 60 days - I believe it was in the Field Adjudicator's Handbook. If I find it again I will post it here.

Ok - here is the information I was searching for:

http://www.uscis.gov/propub/ProPubVAP.jsp?...8ce159d286150e2

The area I was thinking about deals with assigning levels of 'fraud' to determine who is or is not interviewed and the conditions under which an application is denied. In that section find the following:


Reasons for Assigning Fraud Level A. Fraud level A should be assigned when the adjudicator strongly suspects fraud. Reasons fraud level A might be assigned include:

- the petitioner fails to sign the form;
- there is insufficient evidence;
- a large age difference exists between the spouses;
- the married couple is not living together;
- a prior I-751 was denied;
- the petition was filed untimely without a good reason for being late; or
- any other reasons as the service center director may determine . . .
Note: The service center adjudicator must indicate when fraud is suspected, rather than a technical omission, to alert the Fraud Detection and National Security (FDNS) Immigration Officer at the District Office.


(3) Entering Cases in the Computer . Once the fraud level is determined, the adjudicator enters the case in the MFAS data base. The district office assigns a percentage to each fraud level. All fraud level A cases are interviewed. The responsible officer (usually the ADDE) in the district offices may choose to interview between 30% to 100% of all fraud level B cases; and between 10% and 50% of all fraud level C cases. After the case is entered in MFAS, the adjudicator enters the fraud level and the computer determines if the case will be sent for interview depending on the percentage of cases the district office wants to interview.


Note: As of May 25, 2001, users of the Marriage Fraud Amendment System (MFAS) can set up their interview schedules up to six months in advance. Additionally, MFAS will now allow users to delete dates from the Interview Calendar, even if there are cases scheduled for that date. Those cases will automatically return to the "Ready for Interview Scheduling" status.


(4) Types of Cases . The following is a breakdown of the Marriage Fraud cases after adjudication by the service center adjudicator, as indicated in the MFAS support system:


(A) Case Granted . These are cases for which MFAS has determined that an interview is not needed after the adjudicator entered the fraud level. The case is stamped with the adjudicator's approval stamp and routed to an application clerk who sends out the approval notice.


(B ) Scheduled for Interview . If the computer determines that an interview is required, the MFAS automatically slots the petitioner into an available time slot for the district where the petitioner lives. If all available interview slots are filled for the district office, then a "no schedule" phrase is issued. As soon as an interview time is available, they will be slotted into it. Special care should be taken to verify the address and zip code because the interview site is chosen based on the zip code entered from the I-751 .


(C ) Overseas Holds . These are cases where the petitioner and/or spouse live outside the U.S. The case is held pending until the return of the petitioner and/or spouse for a U.S. address to be entered into the computer. Once a U.S. address is known the case can be entered into the computer to see if an interview is required.


Form I-751s filed by Conditional Permanent Residents ( CPRs) who are currently overseas pursuant to military or government orders and who have valid APO/FPO addresses are not automatically placed on an “ overseas hold .� Instead, the director will review the Form I-751 and supporting documentation filed by the CPR and his or her spouse to determine whether or not to waive the interview requirement.


(D) Terminations . These cases are denied for failure to file. They are put in a 60 day call-up category to give the petitioner and spouse a last chance to file the Form I-751 . If they have not filed after the 60 day call-up time frame has expired, the case is routed to the district office for a Notice to Appear to be issued.


(E) Improperly Classified . These are cases where the petitioner (conditional permanent resident) was incorrectly classified when he/she entered the U.S. (generally because the inspecting or adjudicating officer failed to notice that the alien had been married for at least two years at the time the alien was admitted to the U.S. as a permanent resident or adjusted his/her status to that of a permanent resident). When the adjudicator of the Form I-751 determines that the alien was improperly classified as a conditional resident, the adjudicator should issue the individual a letter telling the alien that he/she was incorrectly classified and advising him/her to go to a district office to file an I-90 for issuance of an I-551 at no cost. The Form I-751 is also processed for a fee refund on Form G-266, and the Form I-751 is counted as a “statistical denial.�


Thank you so much. It would appear that we should be OK as long as I get this thing mailed in the next two days since the expiration date was 3-12-2008.


(F ) Battered Spouse . The battered spouse's address is verified and then the case is sent to an adjudicator. The address is verified so that notices are not sent to the wrong person. After updating in the computer the case is sent to a District office for interview.


(G) OASIS Flag . [((2) or ((7)(E)]

What would be your reason for the personal appearance at the San Antonio center? Basically, when you file the I-751, you mail it to the service center responsible for your area - in this case the TSC. The application is opened there, the cheque cashed - and then the file is apparently transferred to the Vermont Service Center. Processing will take place there and will only be forwarded to your local immigration center if they schedule you for an interview. So, what is it you and your wife hope to accomplish by going to the San Antonio center in person?

My point exactly. She is just freaked out and the Texas Center is the only recourse she knows of. I think I have now convinced her that we do not need to do that and simply getting the documents to the appropriate place during the 60-day grace period is the proper avenue.

Showing her the section from the Field Adjudicator's Manual was definitely helpful and I truly appreciate your diligence in locating that item for us.

I have written sample affidavits for three close friends of the both of us and have been gathering additional documents substantiating our claims as a happily married couple including a printout from our website for our business that clearly shows her as a partner.

I fully agree. Make sure you explain clearly why you are filing late and apologize profusely. It is discretionary so you still want to make a good case for them accepting it this late.

Good luck!

Thanks to all for your timely assistance.

The package is in the mail and the post office said it would be delivered by noon tomorrow, which is three days before the end of the 60-day discretionary grace period, so now we play the waiting game.

I just received in the mail today a one year extension on my wife's Conditional Residence stating that they will be sending us an appointment to do the biometrics soon. They did not ask us for any other information and I couldn't believe they had processed it so quickly. Thus it appears they accepted my excuse for being late. The check has not yet been presented at the bank, but I suspect it will be soon.

I had received a reply from an attorney I had checked with stating he would "help" us for $2500. I am glad I found this forum and did it myself with all of your help, so we both send our heartfelt thanks to all who helped us achieve our objective.

Wow that's great - congratulations! I guess that means TSC are issuing NOA1s then?

Good job for doing the paperwork yourself...