Late filing I751

[Kechha 4]

Hello,

 

Wifes GC expired 9 months ago. Just noticed today. Due to her parents medical issue back home and her pregnancy (due in couple of months), we completely forgotten to apply i751.  What are the chances of approval and what they look for?

 

Thanks

Edited September 16, 2018 by Kechha

[Villanelle 4,122]

YIKES!!

You have a lot to do and no time to do it in. Start with the guides and read through this forum. You need A LOT of paperwork. Get it done ASAP and mail it with a tracking number. Include a letter asking them to accept your late filing and give your reasons for filing late along with any proof that backs it up. They almost always accept late filing but 9 months late?? yikes. Im pretty sure they will still take it. You also need to make sure USCIS did not 'cancel' your wifes status because you didnt file. I say 'cancel' because technically if you dont submit ROC your status is canceled but its a long process starting with USCIS sending you a notice you failed to file for ROC and ending in immigration court where a judge can formally strip you of your status. 

Call the 800 number for the courts to see if USCIS issued a notice for her to go to court since she didnt file. If NO notice has been sent yet (I mean its been 9 months so it might have been issued- but USCIS can be very slow so if no notice was issued even after 9 months its not that surprising that they havent gotten to it yet) So if no NTA (notice to appear) was issued yet then USCIS should most likely accept your late filing. If there is a NTA you still need to file the packet ASAP but you will also want to get an attny to help you navigate the court system.

 

good luck!!

[TM92 527]

17 minutes ago, Kechha said:

What are the chances of approval and what they look for?

Here is some info: https://www.nolo.com/legal-encyclopedia/submitting-late-form-i-751-petition-remove-conditions-residence.html

Edited September 16, 2018 by TM92

[Roel 7,192]

I always wondered what's the point of 90 days window if people who file late have like 0 penalties for doing so. 

 

Also, a week is filling late. 12 months (90 days plus 9 months ) late is irresponsible and should be treated as abandoned residency and person should be put in removal procedure. 

 

Pregnancy is not an excuse nor a serious medical condition that would prevent your spouse from taking care of her own status. 

[Kechha 4]

20 minutes ago, TM92 said:

Here is some info: https://www.nolo.com/legal-encyclopedia/submitting-late-form-i-751-petition-remove-conditions-residence.html

Thanks Damara and TM92. 

[Villanelle 4,122]

7 minutes ago, Roel said:

I always wondered what's the point of 90 days window if people who file late have like 0 penalties for doing so. 

 

Also, a week is filling late. 12 months (90 days plus 9 months ) late is irresponsible and should be treated as abandoned residency and person should be put in removal procedure. 

 

Pregnancy is not an excuse nor a serious medical condition that would prevent your spouse from taking care of her own status. 

The courts are extremely backlogged. In some places its a 1.5-2yr wait to see a judge for the NTA.

So when people dont file ROC on time USCIS does have the ability to send them a NTA immediately- the next day. But they dont because its anlready overwhelmed court system. Its also why when people miss their interviews a NTA is not issued immediately. Because they know its just an added process that will eventually circle back to them. 

 

 

[Villanelle 4,122]

And yeah, I would be careful about trying to use the pregnancy as the excuse unless she went through medical procedures related to it before she got pregnant? 

9 months late + she is due in a few months= not pregnant when ROC was due. 

Honestly I dont think USCIS cares what excuse it is. Ive never heard of them rejecting anyone but Im sure if you search hard enough you can find an example. Just dont make outrageous claims like I didnt file in June because I got pregnant in Oct. lol. Its totally fine to just say you forgot and list the things you have going on.

[mushroomspore 3,044]

Best course of action is to file with letter of explanation and HOPE that no NTA has been issued for your wife. They are really slow but that doesn't mean they are slow on every single case. However, 9 months is pretty long. If you do get a NTA (even after filing), the I-751 will at least be pending and you have time until USCIS makes a decision on it. Only an immigration judge can revoke permanent resident status, even if one's GC has expired. Your wife may need to appear in court if the NTA makes its way to you guys. I would also get a lawyer, especially if it becomes clear your wife needs to appear in front of a judge. Immigration court is no joke and not something you can DIY.

[geowrian 22,337]

11 minutes ago, mushroomspore said:

Only an immigration judge can revoke permanent resident status, even if one's GC has expired.

Just as a technical point, a conditional resident's status is automatically terminated upon failure to file for ROC. The removal proceedings are what the court comes in for, although the ROC petitioner still has the ability to rebut the evidence and claim LPR status again. One is also entitled to proof of being an LPR (i.e. an I-551 stamp) until removed.

ROC is one of those weird aspects where technically you can lose status, but at the same time it's effectively no different than any other LPR.

 

From the AFM (https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-11685/0-0-0-11691.html#0-0-0-469😞

"(f) Termination of Status for Failure to File .

 

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 U.S. 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 with in the required time period."

[mushroomspore 3,044]

10 minutes ago, geowrian said:

Just as a technical point, a conditional resident's status is automatically terminated upon failure to file for ROC. The removal proceedings are what the court comes in for, although the ROC petitioner still has the ability to rebut the evidence and claim LPR status again. One is also entitled to proof of being an LPR (i.e. an I-551 stamp) until removed.

ROC is one of those weird aspects where technically you can lose status, but at the same time it's effectively no different than any other LPR.

 

From the AFM (https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-11685/0-0-0-11691.html#0-0-0-469😞

"(f) Termination of Status for Failure to File .

 

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 U.S. 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 with in the required time period."

Thanks for the clarification on the status termination. I think I misunderstood as I read many people say an immigration judge is the only one who can revoke it. In any case, yes, RoC is kinda weird, especially in cases as OP's.

[Villanelle 4,122]

I was actually debating posting what Geowrain wrote or PMing to you @mushroomspore

I purposely used the phrase canceled in quotes and long process ending in court. Ive posted before about your status being auto terminated when denied ROC or failing to file and was accused of fear mongering- which looking at it objectively it was a little since I didnt give the whole story, just the scary part about them terminating you. 

If you fail to file or are denied ROC technically USCIS terminates your status but it then has to go to a judge to review and issue an order. Its hard to explain it in snippets because its complicated but you cant really post 3 paragraphs about it either. So Im just gonna stick with calling it a long process.  

[mushroomspore 3,044]

1 minute ago, Damara said:

I was actually debating posting what Geowrain wrote or PMing to you @mushroomspore

I purposely used the phrase canceled in quotes and long process ending in court. Ive posted before about your status being auto terminated when denied ROC or failing to file and was accused of fear mongering- which looking at it objectively it was a little since I didnt give the whole story, just the scary part about them terminating you. 

If you fail to file or are denied ROC technically USCIS terminates your status but it then has to go to a judge to review and issue an order. Its hard to explain it in snippets because its complicated but you cant really post 3 paragraphs about it either. So Im just gonna stick with calling it a long process.  

Yeah that's basically how I understood it too: a long process with an immigration judge at the end. Technically though, I wasn't aware that the status IS terminated upon GC expiration if I-751 has not been filed. Anyway, let's not derail this thread too much. Our point to the OP is still the same: file I-751 NOW with explanation, hope no NTA happens and find out for sure by calling.

[Villanelle 4,122]

51 minutes ago, mushroomspore said:

 If you do get a NTA (even after filing), the I-751 will at least be pending and you have time until USCIS makes a decision on it. Only an immigration judge can revoke permanent resident status, even if one's GC has expired. Your wife may need to appear in court if the NTA makes its way to you guys. I would also get a lawyer, especially if it becomes clear your wife needs to appear in front of a judge. Immigration court is no joke and not something you can DIY.

They can get a NTA even after they mail it if its issued while their packet is waiting to be processed. Good point. 

when they file if its accepted then a NOA and case # will be generated and no NTA can be issued. A NTA can be issued up until that point. So thats while hes gathering documents, when its in the mail, when its in their processing center waiting to be processed etc.  

If the NTA is issued then you HAVE to go to court. Its one of things that once the ball starts rolling you cant stop it so it would really stink if that happens. Hopefully he can get everything together and in the mail in the next day or so. Use copies of tax returns and w2 stuff instead of transcripts if he cant get them online. Maybe just go to the bank and ask for printouts of the accounts for the last 2 yrs even if he has to pay per page to be printed. Honestly I would take a day or two off work just because of how important this is. Attnys for court are not cheap. Probably more then you make in one day so its smarter to lose the money missing work to get it in ASAP then to delay and get a NTA and have to pay thousands later.

[Russ&Caro 1,549]

Something to consider is to provide as much evidence in the initial submittal as possible. It sounds like the government is pursuing new procedures to automatically reject incomplete or insufficient applications. Don't file a thin application hoping to supplement it later, e.g. when you get called in for an interview. Read the guides here and submit the best application possible. Good luck!

[EM_Vandaveer 2,408]

Please keep us updated on your progress.