2-year Green Card expired, and no I-751 filed?

[EatBulaga 269]

Greetings I-751 gurus,

I'm asking for someone not on VJ who has an expired 2-year green card (like 3+ years) and has not yet filed for the I-751.

What are their options?

What are their penalties for late I-751 filing?

Thank.

[Crazy Cat 40,179]

File a proper I-751 package asap....along with a letter explaining the good reason for a late I-751.  The penalty for NOT submitting an I-751 can be removal proceeding. 

Edited Tuesday at 06:31 PM by Crazy Cat

[EatBulaga 269]

5 minutes ago, Crazy Cat said:

File a proper I-751 package asap....along with a letter explaining the good reason for a late I-751.  The penalty for NOT submitting an I-751 can be removal proceeding. 

Yes, they can file asap.

But suppose the reasons are not good reasons like they forgot or something?

Is there some sort of penalty they can pay? Or will the I-751 be denied regardless?

[nastra30 2,103]

26 minutes ago, EatBulaga said:

Yes, they can file asap.

But suppose the reasons are not good reasons like they forgot or something?

Is there some sort of penalty they can pay? Or will the I-751 be denied regardless?

Just forgetting is to file is not a good cause explanation. Are they one year late in filing or 3 years late in filing? They never received NTA from USCIS? What was happening in their lives that made them forget to file? Are they still married to the USC spouse?

[Crazy Cat 40,179]

35 minutes ago, EatBulaga said:

Yes, they can file asap.

But suppose the reasons are not good reasons like they forgot or something?

Is there some sort of penalty they can pay? Or will the I-751 be denied regardless?

I have not seen a case which was assessed a penalty.

[OldUser 5,350]

19 minutes ago, Crazy Cat said:

I have not seen a case which was assessed a penalty.

Agreed. One can view the possibility being placed in removal proceedings and no proof of status plus difficulty of getting ADIT stamps as a "penalty" for not filing I-751 on time.

[NorthByNorthwest 247]

4 hours ago, EatBulaga said:

Yes, they can file asap.

But suppose the reasons are not good reasons like they forgot or something?

Is there some sort of penalty they can pay? Or will the I-751 be denied regardless?

 

Not filing I-751 within the 90-day window before expiration is a big deal. From 8 CFR § 216.4:

 

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. If the joint  petition is filed prior to the jurisdiction vesting with the  immigration judge in removal proceedings and the director excuses the late filing and approves the  petition, he or she shall restore the alien's permanent residence status, remove the conditional basis of such status and cancel any outstanding notice to appear in accordance with § 239.2 of this chapter. If the joint  petition is not filed until after jurisdiction vests with the immigration judge, the  immigration judge may terminate the matter upon joint motion by the alien and the  Service.

 

Your friend may well have lost LPR status already...

[SalishSea 17,073]

5 hours ago, EatBulaga said:

Greetings I-751 gurus,

I'm asking for someone not on VJ who has an expired 2-year green card (like 3+ years) and has not yet filed for the I-751.

What are their options?

What are their penalties for late I-751 filing?

Thank.

Are you sure they haven’t been issued an NTA?   Someone so casual about removing conditions also wouldn’t likely bother to submit a change of address to USCIS.

[JKLSemicolon 366]

13 hours ago, SalishSea said:

Are you sure they haven’t been issued an NTA?   Someone so casual about removing conditions also wouldn’t likely bother to submit a change of address to USCIS.

Someone so casual about this process probably shouldn’t take a DIY approach and instead should seek a competent attorney to research the situation and prepare the appropriate next steps.

[mam521 1,906]

How has this person remained employed?  And have they been filing income tax?  I don't know how because failing to file ROC = no valid status, both work and travel.  The IRS would have had to have had an address. 

 

By not filing ROC, the burden of proof 100% lies in the beneficiary.  USCIS basically hands it to the judge and can essentially say did not comply, therefore must be removed.  No more proof required to present to the judge.  This is a big no no, let alone a three year big no no!

[OldUser 5,350]

25 minutes ago, mam521 said:

By not filing ROC, the burden of proof 100% lies in the beneficiary.  

It always is with immigration actually. The burden of proof is always on petitioner. That's why with every petition petitioner sends evidence showing they are eligible for immigration benefit. And if USCIS asks for more proof or evidence, more is produced by petitioner or case is denied.

Edited Wednesday at 02:30 PM by OldUser

[Demise 1,162]

31 minutes ago, mam521 said:

How has this person remained employed?  And have they been filing income tax?  I don't know how because failing to file ROC = no valid status, both work and travel.  The IRS would have had to have had an address. 

 

By not filing ROC, the burden of proof 100% lies in the beneficiary.  USCIS basically hands it to the judge and can essentially say did not comply, therefore must be removed.  No more proof required to present to the judge.  This is a big no no, let alone a three year big no no!

1. Generally employers are not required to re-verify employment authorization for permanent residents if they presented a green card. With LPRs reverification is only required for ADIT stamps (aka I-551 stamps), MIRV (the endorsement on/near an immigrant visa), and expired green cards w/ extension letter from I-751 or I-829. Looking at the rules, reverification is not required for a CLPR who presented a valid green card on hire, even if it's a 2 year one.  https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/70-evidence-of-employment-authorization-for-certain-categories/71-lawful-permanent-residents-lpr

2. IRS doesn't really care or verify whether or not one is authorized to work. They will happily take their cut from someone whose employment authorization has expired or someone who never had one in the first place. Being a "resident alien" from immigration standpoint and being a "resident alien" from the tax standpoint are two different things.

 

 

Anyways back to the OP:

Tell your friend to get a lawyer. USCIS does permit late filings of I-751 (regulations require for good cause, but USCIS tends to play a bit loose with that) and a lawyer should be able to dress it up so USCIS will accept it.

Edited Wednesday at 02:37 PM by Demise

[mam521 1,906]

1 hour ago, OldUser said:

The burden of proof is always on petitioner.

Yes, but an immigration judge is supposed to hear both sides of the story.  In the case of not filing ROC, all UCSIS has to say is no petition received and it's over.  They don't even need to show up.  There's very little a petitioner can do to change their minds with this filing and it's written as such in the USCIS rulebook (I think it's chapter 3 or something).  This is one of those petitions you do NOT want to miss filing.  

 

1 hour ago, Demise said:

IRS doesn't really care or verify whether or not one is authorized to work.

True story.  Pay up, sucker!  

 

I guess you can get away without a reverification if you don't have a job or don't switch jobs.  The problem here is the employer can get in trouble for employing someone who doesn't have work authorization.  The I-9 rules have been changing and as it was, many HR departments didn't understand them to begin with.  What a mess!

Edited Wednesday at 03:59 PM by mam521

[OldUser 5,350]

9 minutes ago, mam521 said:

Yes, but an immigration judge is supposed to hear both sides of the story.  In the case of not filing ROC, all UCSIS has to say is no petition received and it's over.  They don't even need to show up.  There's very little a petitioner can do to change their minds with this filing and it's written as such in the USCIS rulebook (I think it's chapter 3 or something).  This is one of those petitions you do NOT want to miss filing.  

Sorry I meant the usual course of things - when petition is under USCIS jurisdiction, the entire burden of proof is on petitioner. In immigration court it's somewhat different from what I understand.

[Crazy Cat 40,179]

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