As a conditional resident, what if I divorce while I-751 pending?

Dealing with awkward timing, when divorce proceedings are begun after the filing of the I-751.

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Question

Some months ago, I filed an I-751 jointly with my U.S. citizen wife. At the time, we were already separated on amicable terms and she told me she would stay married to me just for a little longer to help me file the I-751. But, I don’t know why, the case took too long, and so she filed for divorce. Now I wish we had gotten the divorce before the time came to file the I-751 so that I would have applied for a waiver. If USCIS hears that we are getting divorced at this point, I’m afraid they’re just going to deny my I-751 and place me in removal proceedings. What should I do?

Answer

First of all, you should know that the simple fact that your wife filed for divorce, or that you and your wife were physically and/or legally separated at the time when you filed your I-751 Petition to Remove Conditions on Residence, is not enough for the U.S. Citizenship and Immigration Services (USCIS) to automatically deny your petition.

The agency might, at most, send you a request for evidence (RFE) asking that you submit your final divorce decree. In such a case, you should perceive the RFE more as an opportunity than as an obstacle — because even if you failed to respond to the RFE by sending the requested document, but ample evidence on your record already showed that your marriage had been entered into in good faith, then your petition should still be granted.

Once your divorce becomes final, however, you should not hesitate to quickly send a copy of your divorce decree to USCIS. It might be good (though not strictly required) to attach this document to a cover letter explicitly requesting that your initial joint petition be amended and changed into a divorce-based waiver petition.

In the alternative, you could also file an entirely new I-751 petition. Indeed, there is no legal limit on the number of I-751 petitions you may file — although you should keep in mind that, practically-speaking, submitting multiple filings could confuse immigration officers and, therefore, delay the adjudication of your case.

In either situation, you should consider also providing an explanation of the circumstances of your divorce, with evidence of your attempts to save your marriage (marriage counsel records, for example), in order to strengthen your good faith marriage claim. Be prepared to elaborate further on these points at a future interview.

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