Will Trump make it harder to get an approved I-751, or stop the program?

We have been fielding a lot of nervous emails from clients and community members going through the I-751 petition process. They are worried about whether the Trump administration will make this process more difficult, or altogether stop the I-751 program. Fortunately, at least at this time, there is no reason to think that will happen. But there are reasons to take additional precautions with I-751 cases.

What is an I-751 petition?

First, let’s remember what the I-751 petition is all about.

About thirty years ago congress passed legislation called the Immigration Marriage Fraud Amendments of 1986. The major provision of the legislation was creating a legal status called conditional lawful permanent  residency (LPR).  A person becomes a conditional LPR if they:

1. Go through the marriage-based visa or adjustment of status process; and
2. They have been married for two years or shorter.

Basically, congress was worried about foreign nationals using the marriage visa process as a scam. Congress was worried that people were entering into fake marriages, getting status for an immigrant, and then divorcing.

So congress created a requirement in the immigration statute that become the I-751 petition. Conditional residents are required to file a new petition in the 90-day window before the two-year anniversary of their conditional LPR status. The basic purpose of the I-751 petition is for the couple to demonstrate again that the marriage is legitimate.

If the couple has divorced – or is in the process of divorcing – then the conditional LPR is required to seek a special waiver. Read more about that here.

The Trump administration cannot simply end I-751 petitions.

Here is the good news: President Trump cannot simply cancel the I-751 program. Why not? Because it was created by congress.

As described above, I-751 petitions flow from the requirements of conditional LPR status. That, in turn, was created by congress in 1986. A United States president may change the way that laws are implemented, but he cannot simply change laws that were passed by congress. Since conditional LPR status – and consequently I-751 petitions – are part of the immigration statute, they will not disappear in January 2017 when Trump takes office.

In most cases, I-751 petitions should not get harder.

Many clients and community members are worried that it may become harder to get an approval on an I-751 petition. In most cases, we believe there is no cause for serious concern.

The core purpose of an I-751 petition is for a married couple to demonstrate that their marriage is, in fact, legitimate. Trump has announced many areas where he plans to make the immigration process stricter. (Read more here). But additional scrutiny on marriage immigration cases has not been listed as one of those areas.

When we look at the policy agenda that Trump has endorsed in the immigration area, we see little reason to think that he will focus energy on making marriage immigration cases harder. With the exceptions discussed below, we do not think that it will be harder to get an I-751 petition approved.

We believe it is a very good piece of advice, however, to say this: ensure that you do an excellent job on your I-751 petition packet. Come January, no part of U.S. immigration law is going to get easier. There will generally be additional pressure on USCIS and its adjudicators to apply the law in a way that puts pressure on applicants. This is not a time when you should give the application process anything short of your 100% best. You should put every effort into presenting a packet that makes it easy for USCIS to approve your petition and send you on your way. In the strongest I-751 packets, you may be able to avoid an in-person interview altogether. That’s a good thing in the days to come.

Some I-751 petitions that may be harder.

Generally, we believe that once Trump takes office, I-751 petitions will not be significantly more difficult than they are currently. But there are some specific types of cases that may face extra challenges.

• Muslim and/or Middle Eastern petitioners. Sadly, Trump has made clear that he intends to make immigration difficult individuals who identify as Muslim. Likewise, he has said that certain countries will face increased security screenings, or be altogether ineligible for visas. These comments have primarily been focused on applicants planning to enter the United States, rather than those already there. But we are concerned that all applications and petitions by these groups will face increased scrutiny. The best advice we can give for now is to continue moving forward with these cases, but understand that they may face additional screenings and delays.
• Any (any) criminal history. Immigration applicants should always – always, always, always – consult an attorney if they have had any allegations of criminal conduct. Even “minor” allegations can cause an application to be denied, and result in the individual being deported. In these times of increased scrutiny on immigration applications, this is more true than ever. If you have had any contact with law enforcement, speak to an attorney before you file an I-751 petition.
• DACA recipients with advance parole. Trump has made clear that he will be canceling Deferred Action for Childhood Arrivals (DACA). Certain individuals on DACA have been able to legally re-enter the United States using a program called advance parole (AP). Some of those who re-entered on AP may have been eligible to adjust status based on marriages to U.S. citizens. Those individuals may now be going through the I-751 petition process. Such individuals have already legally re-entered the United States, and a Trump administation cannot change that. Because Trump will be canceling DACA, however, we have concerns that he is motivated to place increased scrutiny on these cases. As of this time there is no reason to avoid moving forward with these cases, but we do have some concern that USCIS will scrutinize DACA enrollees in all cases.

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