Form i751 and divorce
I751 and the conditional permanent resident
Conditional permanent resident (CPR) status is the immigration status that you get under Section 216(a)(i) of the Immigration and Nationality Act when you become a permanent resident or legal immigrant based upon a marriage that is less than two years old. You can be granted conditional resident status as an original immigrant, or you may derive such status as the alien son or daughter of the original immigrant with a qualifying marriage.
Conditional residents have the same rights, privileges, and responsibilities as a lawful permanent resident. They have the right to file petitions on behalf of qualifying relatives and the privilege of residing permanently in the United States as an immigrant in agreement with the immigration laws. They have a duty to register with the Selective Service System when required, and the responsibility for complying with all laws and regulations of the United States including an obligation to file taxes on worldwide income. See 8 C.F.R. 216.1.
However, a conditional permanent resident has an obligation to file i751 conditions form for removing conditions on the permanent residence under INA section 216(c)(1) within 90 days of the second anniversary of residence. The petition must be filed jointly with the petitioner who filed an immigration petition for you. However, in certain cases, it is possible to file i751 alone without the petitioner in when the petitioner is dead, abusive or the qualifying marriage is legally terminated.
How are the conditions on residence removed using form i-751?
A conditional permanent resident (CPR) must file an i-751 removal of conditions form with supporting evidence and the correct filing fee within the 90-day period before the two-year green card expires. USCIS may allow late filing of form I751 under certain exceptional circumstances. The conditional resident and the person filed the original immigrant visa petition Form I-130 or fiancé(é) petition Form I-129F through which the resident got permanent residence will file a Petition to Remove the Conditions I-751 form with USCIS. Both the conditional resident and the petitioning spouse must sign the form.
The conditional resident must establish that:
- The marriage was legal where it took place;
- The marriage has not been terminated;
- The marriage was not for the purpose of obtaining residency, and
- No fee (other than an attorney’s fee to assist filing) was paid.
If the USCIS Service Center Director concludes that the marriage was in good faith and not for the purpose of evading U.S. immigration laws, he may waive an interview. If not, the Director may ask for an interview or start a marriage fraud investigation if he believes the marriage was a sham to get a green card. With some form i-751 petitions the USCIS may interview couples more than once.
If the director approves the joint petition he or she will give written notice of the decision (I-797C, Notice of Action). However, before the USCIS grants a 10 year card however a conditional 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 a conditional resident will not have to surrender the 2-year Permanent Resident Card previously issued by the USCIS.
What if my U.S. citizen or LPR petitioner refuses to sign the petition?
When the marriage relationship is dysfunctional i-751 petitions may need extra care. A divorced or legally separated CPR may ask for a waiver of the joint filing requirement if the CPR establishes any one or more of the following:
- She entered the marriage in good faith, but the marriage was terminated (other than through death);
- She entered the marriage in good faith, but she or her child was battered and or suffered extreme mental cruelty;
- Termination of status and removal from the United States would cause extreme hardship.
A conditional resident who is unable to file a joint petition because divorce or annulment proceedings have started, may not apply for a waiver under the good faith marriage exception until the marriage is legally terminated.
If the couple is legally separated and has 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 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 getting 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 you entered the marriage in good faith, but you are legally separated from your petitioning spouse or are 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 conditional resident who does this will get a USCIS Request for Evidence (RFE) for a decree with a response time of 87 days. The conditional resident gets the opportunity to prove eligibility for the waiver by submitting a copy of a final divorce decree or annulment. However, seek early legal advice before pursuing an application based upon divorce because obtaining a final divorce decree may take longer than the RFE response time.
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 jointly filed 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.
To avoid an I-751 interview, you must demonstrate to the USCIS that your marriage was in good faith marriage and not a sham to get a green card. To prove a good faith marriage, you must show that you lived together and commingle your finances by having joint assets and liabilities. You should provide tax returns showing that you filed taxes as married even if one of you made no income. You must demonstrate that you had shared experiences – you vacationed together, were together at social outings and spent time together with family and friends. You may also prove that you had children together or have sought to have a child together using fertility treatment.
As each person has a different immigration and marriage situation it is important to seek specific legal advice on how to file forms i-751. For advice on your immigration through marriage case please consult an experienced immigration attorney. If you have any questions about removing conditions on residency contact us at 702-423-2721 or via the Contact Us form to book a confidential initial consultation.