Question: What happens when the I-751 is denied by the USCIS?
Answer:When the I-751 is denied by the USCIS, the alien will be placed in removal proceedings. In those proceedings the alien may renew the Petition to Remove Condition on Residence in Form I-751with the Immigration Judge. The DHS has the burden of proving that the affirmances made by the parties are untrue or unfounded. The Immigration Judge may review the denial of the I-751 but will continue the proceeding if the I-751 is pending with the USCIS. If the proceeding is initiated because the parties failed to file the I-751, the proceeding may be stayed (stopped) and a late petition may be adjudicated. If the alien is placed in removal proceeding because of a denial of I-751 waiver of joint filing petition, the alien may file a new waiver application if he qualifies in any of the other three waivers of filing joint petition and the Immigration Judge will continue the proceeding to allow the alien to file a new waiver application.
Question: What are the instances where the USCIS may terminate conditional residence and initiate removal proceedings?
Answer: Aliens with conditional residence may be placed in removal proceedings in any of the following:
1. Failure to file a joint petition to remove the condition on residence at the end of two year period.
2. Failure to file an application for waiver to file joint petition.
3. Failure of either spouse to appear for an interview on a joint petition.
4. Failure of the conditional residence to appear for an interview on a waiver application.
5. The joint petition or waiver application was filed but was denied by the USCIS.
Question: In what instances may an alien file a waiver of filing joint petition to remove condition on residence?
Answer: The conditional resident alien may file a waiver of filing joint petition in any of the following situations:
1. The marriage was entered in good faith but the spouse has died.
2. The marriage was entered in good faith but the marriage has been terminated by divorce or annulment.
3. The marriage was entered in good faith but the conditional resident has been battered or subjected to extreme cruelty by the US citizen spouse.
4. Termination of conditional residence status and deportation would result in extreme hardship.
[Note: This is not a legal advice.]
Immigration news
1. USCIS filing fees will increase by about 10% effective November 23, 2010.
2. The USCIS may check your personal information on Facebook.
3. The Ninth Circuit Court decided that the death of US citizen parent will not be a hindrance to seek waiver of misrepresentation.
4. On March 17, 2010 we received an approval in Immigration Court of adjustment of status for a conditional residence whose status was terminated before. When a conditional residence is terminated the USCIS will refer the alien to removal proceedings.
5. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
6. On Dec. 7, 2009, our client Ms. E was approved for a waiver of misrepresentation in the Immigration Court. In another case, on October 29, 2009, our request for waiver of misrepresentation for entering as single but actually married for our client Mr. D in Fresno, CA was approved by the Immigration Judge.
Tips of the week
1. Petitioner’s death is not a problem if the beneficiary is in the US when the petitioner died and at the time of adjustment of status.
2. Abused spouse of US citizen or permanent residents can self petition even if there is a problem with their passport and entry documents.
3. Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. It is also needed by employers to charge to expense payment for contractual job. Our office assists clients in obtaining ITIN.
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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188.
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