Can we apply earlier than 90 days before expiration of the green card?

[sharky 2]

Hey guys,

Wouldn't the only exception to the 90 day rule (and it wouldn't really apply here) is when the foreign spouse has got divorced in the 2 year conditional GC period. Then as soon as the divorce is final you can apply and that could be prior to the 90 day period.

Paul

[russian_armenian 4]

Yes, I can see that the last version is Jan 2008-so, prob it is still 90 days. By the way, CFR is code of federal regulations (FDA does it in title 21-which I know by heart; so, looks like homeland security responsible for title 8). Usually, it does not go through Congress. Agency publishes new rule/regulations in fed register (but usually we/companies know well in advance that new rule will be bublished) , then public debate/opinion, then revised/goes in effect and amended CFR gets published. It is not a statute (which has to go through Congress-commitee, both hauses, floor debate, president...) but has the same power (at least, that is how it gets done in FDA). I might need to check-been long time since I had to learn this. One more thing, quite often regulations conflict with other regulations and less with statutes (they are just so general).

I already quoted the statute which Congress wrote where Congress says that you must file within the 90 day period.

Yes, agencies may write regulations to fill in details of procedures, but the regulations must not conflict with what Congress wrote into the statute. Only Congress is allowed to change what Congress said.

And in this case, the latest regulations are also available on line, and yes, the regulations also say the petition must be filed within the 90 day period.

From 8 CFR 216.4:

a) Filing the petition -- (1) General procedures . Within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained permanent residence, the alien and the alien's spouse who filed the original immigrant visa petition or fiance/fiancee petition through which the alien obtained permanent residence must file a Petition to Remove the Conditions on Residence (Form I - 751) with the Service.

(6) Termination of status for failure to file petition . 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 United States. In such proceedings the burden shall be on the alien to establish that he or she complied with the requirement to file the joint petition within the designated period. 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 Form I-751 within the required time period.

I cut things a bit; I encourage anyone interested to read the full 8 CFR 216.4 on the USCIS website.