If we were living apart for a couple of months before filing I-751, should we reveal this to USCIS?

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Question:

My husband came to the U.S. on a fiancé visa, after which we got married and applied for his green card. Now he’s in the “conditional residence” period. We went through a rough patch in our marriage for a couple of months, during which I stayed with my parents. (They live in another city, a two hours’ drive away.) Things got better with the marriage after some counseling, but now I’m staying with my parents again, because my father is ill and my mother can’t manage the house alone. How long I might have to stay with my parents depends on things beyond my control. Would it be easiest to just not reveal these facts on my husband’s I-751 application to remove the conditions on residence? I’m afraid it will think our marriage is failing. (The I-751 is due in a month.) Should I fill in my parents’ address or my husband and my address on the form?

Answer:

Put yourself in the shoes of the examiner for U.S. Citizenship and Immigration Services (USCIS) who reviews your case and possibly meets you at an interview: How would you react if you were told upfront about the marital difficulties and changes in living situation, complete with an explanation? Now compare that to how you, as a USCIS examiner, might react if you discovered the information on your own, and realized that the applicants had at the very least concealed something, or at the worst, lied?

As you can imagine, USCIS examiners tend to treat any signs of dishonesty quite seriously, and often take them as a sign that applicants have been dishonest about other things, as well – in this case, perhaps the bona fides of your and your husband’s original intention to establish a real marriage.

Honesty is always the best policy in immigration matters. And if you can’t be honest without putting your application at risk, you should consult a lawyer.

You may want to consult a lawyer anyway for help preparing the I-751 and supporting documents, but should first understand that living apart is not a bar to your husband receiving a permanent green card. Nor does a failing or unviable marriage disqualify the applicant from permanent residence. Such issues simply raise questions about the key legal concern: Was the marriage legitimate at the time you entered into it?

By what you’ve described, the answer is yes. In fact, the fact that you sought counseling for marital difficulties can be viewed as a positive sign regarding your intentions. People intending to commit marriage fraud do not spend time and money on counseling!

So your main task will be to send USCIS plenty of evidence (with the I-751) about the bona fides of your marriage, as described in Nolo’s article, “Submitting Documentary Evidence of Good Faith Marriage With Form I-751.” Be sure to include evidence of your continued contact with your husband while living apart, such as your trips to see each other and records of phone conversations or emails. You may also wish to attach a written statement explaining your changes in living situation, and your intention to resume living with your husband after your parents’ situation stabilizes.

As to the logistical question of your current address, it depends. If you are beginning to receive other mail at your parents’ house, and have changed your address with any official place such as your state’s department of motor vehicles, then you should definitely list the parents’ address as yours on the I-751. But if you continue to receive all your mail at the house where your husband currently stays, and treat it as your permanent address in every way, then you can legitimately list that on the I-751.

And, of course, if USCIS chooses to schedule the two of you for an interview (which it does in some, but not all cases), you should make every effort to attend.

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