Form i751 and divorce
I751 and the conditional permanent resident
Conditional permanent resident (CPR) status is the immigration status given to an immigrant who is granted a US green card based upon a marriage that is less than two years old. 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. However, permanent resident status will end for a conditional permanent resident and he is deportable from the United States unless he properly files a i751 conditions form for removing conditions on residency. The form must be filed within 90 days before the two-year card expires.
How are the conditions on residence removed?
A conditional permanent resident (CPR) must file i-751 removal of conditions formwith supporting evidence and the correct filing fee within the 90-day period before the card expires. USCIS may allow late filing of form I751 under certain exceptional circumstances. Normally you and the spouse who filed the original immigrant visa petition Form I-130 or fiancé(é) petition Form I-129F through which you got permanent residence will file a Petition to Remove the Conditions I-751 form with USCIS. Both the you and your petitioning spouse must sign the form. If the 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 you and your spouse. If not, the Director may ask for an interview or start a marriage fraud investigation if 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 you. Before the USCIS grants you a 10 year card however you will get an appointment notice (I-797C, Notice of Action) containing 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). In practice you will not have to surrender the 2-year Permanent Resident Card previously issued.
What if my U.S. citizen or LPR petitioner 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 your I751 petition solely because you are separated and/or have started divorce or annulment proceedings. However legal separation or the start of divorce or annulment proceedings may suggest that you 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. However if you are in divorce proceedings and cannot get your U.S. citizen or lawful permanent resident spouse to file jointly you 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 you 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 an experienced immigration attorney. If you have any questions about removing conditions on residency feel free to contact us at 702-423-2721 or via the Contact Us form to book a confidential consultation on your immigration or citizenship matter.