Form i751 and divorce
Who is a conditional permanent resident?
Conditional permanent resident (CPR) status is the immigration status given to an immigrant who is granted a US green card within two years of getting married to a United States citizen or lawful permanent resident. The immigrant spouse will be a conditional resident for two years from the time conditional residence is granted. A conditional resident has the same rights as a lawful permanent resident. A conditional resident can live and work freely in the United States, and can travel in and out of the United States. Permanent resident status will end for a conditional permanent resident and he is deportable from the United States unless he properly files form i751.
How are the conditions on residence removed?
A conditional permanent resident (CPR) must file Form i751 with supporting evidence and the correct filing fee to remove the conditions on his or her residence within the 90-day period immediately before two (2) year anniversary of the date on which he or she obtained permanent residence. USCIS may waive the need to file within 90 days under certain rare circumstances. Normally the CPR and the CPR’s spouse who filed the original immigrant visa petition Form I-130 or fiancé (é) petition Form I-129F through which the CPR obtained permanent residence will file a Petition to Remove the Conditions on Residence Form I751 with USCIS. Both the CPR and the CPR’s spouse must sign the form. If USCIS Service Center Director is satisfied from the petition and supporting documents that the marriage is in good faith and not for the purpose of evading U.S. immigration laws, he or she may waive an interview with the couple. If not the Director may request an interview or start a marriage fraud investigation if he or she believes the marriage was for the purpose of getting a green card.
If the director approves the joint petition he or she will give written notice of the decision (I-797C, Notice of Action) to the CPR and an appointment notice (I-797C, Notice of Action) to with a specific time, date and place to capture your fingerprints, photo and signature at a local USCIS Application Support Center (ASC) for processing of a new Permanent Resident Card (the 10 year green card). The CPR must then surrender any Permanent Resident Card previously issued.
What if my marriage is broken and my U.S. citizen or LPR spouse refuses to sign the petition?
A divorced or legally separated CPR may ask for a waiver of the joint filing requirement if the CPR establishes that:
- She entered the marriage in good faith, but the marriage was terminated (other than through death); or
- He entered the marriage in good faith, but she or her child was battered and or suffered extreme mental cruelty; and/or
- That she would suffer extreme hardship if returned to her country of origin.
A conditional resident who is unable to file a joint petition because divorce or annulment proceedings have begun, may not apply for a waiver of the joint petition under the good faith marriage exception until the marriage is legally terminated.
If the couple is legally separated and/or have started divorce or annulment proceedings the USCIS may still approve an I751 petition. The USCIS Service Director may not deny an I751 petition solely because the couple are separated and/or have started divorce or annulment proceedings. However legal separation or the start of divorce or annulment proceedings may suggest that the CPR entered into the marriage for the sole purpose of obtaining a green card.
Can I get a waiver if I am legally separated but not divorced?
There is no waiver of the joint filing requirement based solely on the fact that a CPR may have entered the marriage in good faith, but he or she is legally separated from the petitioning spouse or is now in divorce or annulment proceedings. But the CPR in divorce proceedings who cannot get his or her U.S. citizen or lawful permanent resident spouse to file jointly may still ask for the waiver based on termination of the marriage.
A CPR who does this will get a USCIS Request for Evidence (RFE) with a response time of 87 days. In many cases the divorce will be completed during the response period to the RFE. This gives the CPR the opportunity to prove eligibility for the waiver by submitting a copy of his or her final divorce decree or annulment.
What if divorce proceedings start after we filed the joint I751 petition? Do I have to re-file?
If the CPR filed an I-751 petition jointly but later become legally separated and/or in pending divorce or annulment proceedings the USCIS will issue the CPR a Request for Evidence (RFE) with an 87-day response period. In the RFE, the USCIS will ask the CPR to send a copy of the final divorce decree and a request stating he or she would like to have the joint filing petition treated as a waiver petition. This gives the CPR an opportunity to send evidence that the divorce is final and to request a waiver of the joint filing requirement without refilling.
For specific legal advice on your immigration through marriage case please consult a competent immigration attorney. If you have any questions feel free to contact me at 702-423-2721 or via the Contact Us form for a confidential immigration consultation. I also urge you to subscribe to the RSS feed so you can see when I post new immigration articles.