Divorce and Your Conditional Residence Status: How to File a Divorce Waiver With Form I-751

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If you received U.S. residence because of a recent marriage to a U.S. citizen, your first, “conditional” green card will be valid for only two years. In order to trade that one in for a permanent green card, you will need to file a Form I-751, Petition to Remove the Conditions of Residence. This must (in most cases) be signed by both you and by your U.S. citizen spouse, and mailed to U.S. Citizenship and Immigration Services (USCIS) within the 90 days before the two-year anniversary of the date your conditional green card was issued.

But if you divorce (or your marriage is annulled) before the two years have passed and you want to continue to live in the U.S., filing this petition jointly with your spouse will be impossible. You will still need to submit Form I-751, but will have to include a request for a “waiver” of the joint filing requirement. The waivers most likely to be relevant to your case are based on:

  • divorce after a good-faith marriage
  • abuse or battery by the U.S. spouse in a good-faith marriage, and
  • extreme hardship to the immigrant if returned to his or her country of origin.

More information on these waivers can be found at: “What if Your U.S. Spouse Won’t Sign the Joint Petition (I-751)?” Here, we'll focus on the divorce waiver.

If You Divorce Before Becoming a Permanent (Not Conditional) Resident

If you obtain a final order of divorce before the two-year conditional period has ended, then the divorce waiver is a logical choice for you. Your task will be to convince U.S. Citizenship and Immigration Services (USCIS) that valid reasons exist to allow an exception to the joint filing requirement, by showing that your marriage was “bona fide” or genuine at the time and was not a mere “business transaction” to skirt immigration laws.

To see the types of evidence conditional residents have submitted to USCIS for this purpose, see “Submitting Evidence of Good Faith Marriage With Form I-751.”

You should also prepare a written explanation as to the reasons why your marriage ended. I-751 waivers are discretionary (that is, USCIS makes its decision on a case-by-case basis depending on your individual circumstances). If USCIS discovers that you were at fault in the termination of your marriage (because you abandoned your spouse or committed adultery, for example), the agency may deny your I-751 petition.

If You Must File the I-751 Waiver Before Your Divorce Is Final

You can file Form I-751 at any time if you have a final order of divorce or annulment. That's true even if your conditional green card is not close to its expiration date. But what happens if you haven’t yet filed for divorce or your divorce is not yet final?

If you have separated from your U.S. citizen spouse or he or she refuses to file Form I-751 with you, consult with an experienced immigration attorney. You’ll need to make some strategic decisions to what to do next. In such a case, you have a few options:

  1. Remain married and file Form I-751 with a waiver based on “extreme hardship” or “battery or extreme cruelty” if either applies to you.
  2. File for divorce and mail the Form I-751 with evidence that you have initiated divorce proceedings (though this is problematic in that USCIS really prefers to see a final divorce order before issuing an approval), or
  3. Wait until your conditional residence expires and you are placed into removal proceedings to file for a waiver.

Weighing Your Options If Your Divorce Isn't Final

You can bypass the divorce waiver if you or your conditional resident child was battered or subject to extreme cruelty by your U.S. spouse or if your removal from the U.S. would subject you to “extreme hardship.” For more on what is necessary for hardship or abuse waivers, see the articles “Filling Out a Form I-751 With a Hardship Waiver” and “Filling Out Form I-751 With A Waiver Based on Abuse or Battering.” You can apply for one or both of these waivers if they apply to you.

Because USCIS wants to see a final order of divorce or annulment with your I-751 divorce waiver request, some conditional residents get “stuck” in processing. Divorce proceedings can take several months or longer if contested. However, some conditional residents have successfully dealt with this by filing a copy of their divorce petition and proof of their scheduled mediation sessions or court dates along with their Form I-751. In most cases, USCIS will then issue a receipt notice (on Form I-797) that extends the applicant’s green card for a designated time (usually a year). Later, USCIS will issue a “Request for Evidence,” asking for the final divorce decree when available.

If your divorce is not finalized and you remain in the U.S. after the expiration date of your conditional residence without first filing a Form I-751, you will be placed into removal proceedings. Because you were unable to timely file Form I-751, you may be able to request a continuance of these proceedings (and a temporary green card) while you wait for the final divorce or annulment decree so you can file Form I-751.

Filing an I-751 With a Divorce Waiver

For instructions on how to complete Form I-751, see “Filling Out USCIS Form I-751, Petition to Remove Conditions on Residence (Line by Line).” In order to file a Form I-751 with a waiver based on divorce, you must submit your completed and signed petition along with the following:

  • Filing fee or, if you can’t afford to pay the fee, Form I-912, Request for Fee Waiver (For a list of current USCIS fees, see Form G-1055, Fee Schedule.)
  • A copy of your permanent resident card (front and back sides)
  • A copy of the divorce decree or annulment document that ended your marriage (if available; if not, evidence that the divorce proceedings are underway)
  • Evidence that the marriage was genuine. For a list of documents that conditional residents have used to prove that their marriage was entered into in good faith, see: “Submitting Evidence of Good Faith Marriage With Form I-751.”
  • Evidence regarding the circumstances surrounding the end of your marriage (if you were not at fault).

When to Submit Evidence About Why You Divorced

You also might want to submit a personal statement or other evidence regarding the circumstances of your divorce in order to prove that it was not your fault that the marriage ended. For example, you can provide evidence of:

  • No-fault divorce: If the divorce petition was initiated due to irreconcilable differences or a mutual understanding, you should state that the divorce was a no-fault action and the differences that led to the end of your marriage (disagreements about whether to have children, where to live, or anything else that is relevant).
  • The divorce having been your ex-spouse’s fault: If you alleged grounds for divorce or annulment such as adultery, abandonment, impotency, or imprisonment, you should submit a copy of the divorce or annulment petition that alleged those fault grounds or documents that tend to prove those grounds. You can also provide affidavits from people who knew you and your ex-spouse attesting to the fact that the divorce was the fault of your former spouse.
  • Having attempted marriage counseling: If you or your ex-spouse initiated marriage counseling sessions prior to your divorce, you can provide invoices for those sessions or evidence that you tried to convince your former spouse to go to a marriage counselor. This could include emails to your ex-spouse or evidence that you contacted a counselor during your marriage (emails to a counselor or a letter from a counselor stating that you requested information from his or her office). This also helps prove that the marriage was bona fide.

What Happens After You File

After you file your petition, USCIS will issue you a receipt notice on Form I-797 that will serve as your green card after your conditional card expires and will allow you to continue to live and work in the United States and travel abroad.

Make sure to respond to all requests for evidence and appointment notices from USCIS. Most petitions to lift conditions that are filed with a waiver of the joint filing requirement will be referred to a local office for an interview. When you attend your interview, bring copies of all evidence that you submitted along with your Form I-797 and be prepared to answer questions about your marriage and divorce.

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