Massachusetts Immigration Lawyer Blog

Lately, our Boston immigration law office has been inundated by a flood of people who have had their I-751, petition to remove conditions on permanent residency, denied by USCIS because they were not filed on time. As the I-751 denial letter points out, when the I-751 is denied, all the rights and privileges of permanent residency are terminated. In some cases, the I-751 denial letter is accompanied by a Notice to Appear in Immigration Court, which means that deportation or removal proceedings have been initiated.

If you filed your I-751 late and then got one of these denial letters from USCIS, what should you do? First, take a deep breath. Relax. Don't panic. And, by all means, don't pack your bags and leave the U.S.

Before discussing the solution, let me explain the problem. When you are given a conditional green card, you are required to file, together with your spouse, a petition requesting the removal of the conditional basis for your residency within the 90-day period immediately before the second anniversary of the date that you became a permanent resident. If you fail to file the I-751 by this deadline, the immigration regulations say that you will lose your green card status and be placed in deportation proceedings!

USCIS will permit you to file your I-751 late, after the expiration date on your 2-year conditional green card, but only if you include a written explanation of why you failed to file on time and a written request asking USCIS to excuse the late filing of the I-751. If you file your I-751 late and don't include this written request, USCIS will deny your I-751 on the grounds that it was untimely. This is what happens to many I-751 applicants who include the written explanation and request as required. And even if you include the written explanation and request, USCIS will only excuse a late-filed I-751 for "good cause."

So, with this background in mind, here are 3 possible remedies to the denial of an I-751 for failure to file in a timely manner.

1. Refile the I-751 but this time include the written request that USCIS excuse the late filing and explaining why you file the I-751 late. Since you must convince USCIS that your failure to file on time was for "good cause," you should include affidavits, medical records, financial documents--any and all documentation to support your argument.

2. Request that an Immigration Judge review the denial of your I-751. You can't petition Immigration Court to review the denial of your I-751 directly. You can only do ask Immigration Court for review of the I-751 denial if you are placed in deportation proceedings and required to appear before an Immigration Judge. Immigration Court doesn't have jurisdiction over all denied I-751s but this option is available in some instances. At a hearing in Immigration Court, the Immigration Service--not you--would have the burden of showing that basis for why it denied your I-751.

3. File a motion to reopen the decision by USCIS to deny your I-751.

Which of these options is best path to keeping your green card depends on the facts of your immigration case.  This is a decision best made in consultation with an immigration attorney with substantial experience handling family-based immigration cases and with a strong background in deportation defense.

If you need more help or advice on how to remove the conditions on your green card or if you need representation in Immigration Court, please call me at 617-722-005 and schedule a time to meet with me to discuss your immigration case.

As most people in Boston's Haitian community know by now, Haitian nationals who are now in the U.S. may apply for Temporary Protective Status or TPS to avoid deportation from the U.S. and to obtain a work permit, i.e., employment authorization. Applications for TPS are filed on Form I-821 and must be received by the cut-off deadline of July 20, 2010.

TPS is a generous benefit. Consider the following:

• A final order of deportation or removal will not disqualify you for TPS as a Haitian;
• As a Haitian, you may qualify for TPS even if you are out of status or have overstayed your visa; and
• If you entered the U.S. without inspection, you may still apply for TPS as a Haitian.

I'm often asked by people who are out of status or who have been in deportation proceedings, whether it makes sense to apply for TPS.  The risk is clear.  TPS is, of course, temporary; it is not a green card and doesn't lead to permanent residency, i.e., a green card.  TPS merely provides immigration status and work authorization for a temporary, 18-month period. 

So, if someone has been deported or is out of status, TPS provides only a temporary reprieve for 18 months.  What then will become of countless Haitians with TPS who have orders of removal or who are out of status?  In short, the question that is usually put to me:  "Won't Immigration just come and arrest me after the 18 months are over?"

This is a valid concern.  But I still recommend applying and here's why.  Although TPS for Haitians is designated for 18 months, I suspect that TPS will be around for many years to come.  Consider the example of El Salvador, which was granted TPS after an earthquake in 2001 and since then has been extended for a series of 18-month periods.  And it remains in effect today nearly a decade later.  Based on this and other TPS programs, I don't see Congress taking away TPS for Haiti anytime soon.

And Haitian considering TPS should take another lesson from the experience of El Salvador:  apply before the deadline or you will miss out.  For Haitian seeking TPS the deadline is July 20, 2010.  After that date, your application will be late.

In summary, I generally recommend that all eligible Haitians consider apply for TPS.  If you need immigration help or advice on this or other issues, please call my Boston immigration law office at 617-722-0005 and schedule an immigration consultation with one of our attorneys today.

Green Cards, Marriage and Taxes

As an immigration lawyer in Boston, I know next to nothing about accounting and tax law. But I do know a lot about how your tax return may impact your immigration case.

If you are going through any immigration process, you should expect immigration judges and officers to scrutinize your tax returns. For those who are in the process of applying for a green card through marriage to a permanent resident or to a U.S. citizen or who have filed an I-751 petition to remove the condition on permanent residency, I have 3 tips that may help you:

1. File your taxes jointly with your spouse using "married" status, if possible. U.S. Citizenship and Immigration Services will consider a jointly filed, married tax return as evidence that your relationship to your spouse is bona fide or genuine. Of course, if you are seeking a permanent residency but don't yet have a social security number it may be impossible to file your taxes jointly with your spouse.   But it is absolutely imperative that you file a married, joint tax return if possible.  The reason that this is so important is that if you file your taxes separately or as "single" immigration authorities may get suspicious and conclude that you and your spouse have a relationship that was entered into solely for the purposes of getting a green card.  If you file "single" during a time that you are married, I suggest that you consider filing an amended tax return to fix this.  

2. Make sure that the address on your W-2s confirms that you live with your spouse. USCIS will want to see your entire tax return, including all schedules, W-2s, 1099s and other schedules.  And if your paycheck is directly deposited into your bank account, then you might not be paying close attention to the address listed on your paycheck or W-2.  But if you are trying to convince an immigration officer that you live with you spouse, you had better be sure that address on your W-2 or paycheck should reflect that you and your spouse do in fact live together.

3. Provide your IRS tax transcripts to immigration authorities.  Whether you are in Immigration Court or appearing at an interview before a USCIS immigration officer, I recommend that you bring with you your IRS-certified tax transcripts and not a copy of your tax return.  The transcripts prove that your return was actually filed and is on record with the IRS and, therefore, is stronger evidence for immigration purposes.  I've seen plenty of denial letters from USCIS that say something along the lines of "although you provided photocopies of your tax return, you did not submit IRS-certified tax transcripts."  The IRS tax transcripts are available at the IRS office in the JFK Federal Building, next to USCIS Boston District Office or can be obtained by filing Form 4506-T with IRS.

If you have more questions about taxes and immigration or any other immigration topic or if you need representation in Immigration Court or elsewhere, please call my Boston immigration law office at 617-722-005 to schedule an appointment.