If you are an immigrant who obtained his or her residence in the US through marriage to a lawful permanent resident (green card holder) or US citizen, you probably already know that you will need to file a Form I-751 to remove your conditions on residence during the 90-day period before your 2-year green card expires.
What you may not be aware of is that the US Citizenship and Immigration Services (USCIS) has been making it much more difficult for your I-751, Petition to Remove Conditions on Residence, to be approved. While you may expect that if your application for a 2-year green card was approved without any problems, you can expect a similar result for your 10-year green card application, USCIS is now using official sounding language to deny cases that, based on applicable law, should be approved.
The “not enough joint assets” denial
One of the most common reasons that USCIS has been using to deny cases is that the spouses “did not establish, in sufficient detail, joint ownership of assets, joint responsibility for liabilities, and active co-mingling of finances for the duration of [the] marriage.” This, in simpler language, means that USCIS is taking the position that, to be approved, you and your spouse should be jointly responsible for bills, share your money through joint bank accounts, and own assets in both of your names.
However, this position is not supported by the law. The law applicable to I-751 petitions states that shared bills and jointly owned assets are merely one of the ways you can prove that your marriage is bona fide, but this type of proof is not required. The government must consider all the evidence submitted and determine if is “more likely than not” that your marriage is not a sham. This means that if you submit other types of evidence which demonstrate that you entered into your marriage in good faith, and not solely for the purpose of obtaining your green card, USCIS cannot require you to submit evidence of financial co-mingling or joint ownership of assets. The law takes into account that modern-day America, where both spouses typically work, couples may wish to keep their finances separate, therefore, it extends the courtesy of this lifestyle choice to immigrants applying for their permanent green cards.
USCIS’s boilerplate request for evidence (RFE) and denial, which include the financial co-mingling language discussed above, very commonly make claims that have no basis in the law, and applicants who receive these notices often assume that the government’s interpretation of the law must be correct. However, in addition to misstating the law, the government also frequently misapplies it. For example, we often see cases where the couple has submitted jointly filed tax returns, but USCIS claims that they have no joint assets of liabilities. This argument by USCIS is flawed, because if taxes are owed on a jointly filed return, both spouses are responsible for payment, which creates a joint financial liability. Similarly, if the jointly filed tax return results in a refund, the money belongs to both spouses, which creates a joint asset.
What to do after receiving an RFE or Denial in your I-751 case
If you have made the common lifestyle choice of keeping most or all of your finances separate, or you simply have limited documentation of shared financial liabilities and assets, you can still win your I-751 case. What you can to do protect your rights depends on the stage your case is currently in. If you have received a Request for Evidence, you are in a good position, because you still have the option of making a case for approval without submitting a new application, which would require the payment of government fees once again.
If your I-751 has been denied, the law does not allow you to appeal it, but it is possible to file a new I-751 petition with a new filing fee, and this can be done at any time before the Immigration Judge issues a Final Order of Removal (a deportation order) in your case. Luckily, immigration authorities are currently slow to place immigrants who do not have a criminal history into removal proceedings, so there is usually an option to re-file a denied I-751, sometimes even years after the first one was denied.
In the last year, we have handled many cases where the government either denied or threatened to deny applicants based on a lack of financial comingling. By presenting other strong evidence that demonstrated the bona fide marriage, and citing to the applicable statutes, regulations and precedent case law, we were able to create winning strategies for our clients’ cases and keep them out of Removal Proceedings.
If you have received an RFE or a denial of your I-751 for any reason, remember that the government is not always right. Call us today for a consultation with one of our award-winning immigration attorneys!