Dealing with an I-751 Request for Evidence

In my practice I have been experiencing an increase in the number of Request for Evidence issued in I-751 Petitions to Remove Conditions on Residency. Nothing has changed in the law or how I handle my I-751 cases but the USCIS has apparently changed how it adjudicates these cases. In this article I will outline what the law actually says about the requirements for the I-751 and how to best document your case to avoid an RFE or a denial.

First, the most common RFE that I receive from the USCIS says that the evidence submitted was not sufficient “because it does not cover a sufficient amount of time or is not sufficient enough to demonstrate a good-faith marriage.” What is puzzling about this is that there is no law or regulation that says that the evidence must cover the entirety of the marriage . What the regulations do say is that Form I-751 “shall be accompanied by evidence that the marriage was not entered into for the purpose of evading the immigration laws of the United States.”  8 CFR §216.4. Sub-section five of that regulation then lists the following types of evidence that may be offered to support the petition: 1.) Documentation showing joint ownership of property; 2.) Lease showing joint tenancy of a common residence; 3.) Documentation showing co-mingling of financial resources; 4.) Birth certificates of children born to the marriage; 5.) Affidavits of third parties having knowledge of the bona fides of the marriage; OR 6.) Other documentation establishing that the marriage was not entered into to evade the immigration laws of the United States. There is no requirement that the applicant provide such evidence for the entirety of the marriage and not all categories of evidence must be provided.

As a practical matter is does not matter much what the regulations actually state because unless you intend to litigate the matter in federal court you must comply with the USCIS request. In this case, the USCIS seems to have adopted a policy requiring that the I-751 applicant provide evidence of the types identified above that cover the duration of the marriage.

For example, if you provide a lease agreement to evidence co-habitation it should cover the entirety of your marriage. If you lived with your spouse in multiple homes during your marriage try to provide documentation for each location. Using another example, many couples provide copies of utility bills, bank account statements or similar documents to show commingling of financing obligations. Be sure to submit documentation for the entire of the marriage.

I hope these examples are helpful. If you would like some assistance with your I-751 application please do not hesitate to contact me.