As Conditional Resident Child Whose Parents Aren't Speaking, How Do I Do Form I-751 on My Own?

It’s going to be up to the child applicant to show either that the parents got divorced after a marriage that was real, or else prove that making the child leave the U.S. will cause “extreme hardship.”

Question

I came to the United States from Jamaica with my mom after she married my stepfather, who is a U.S. citizen. My mom and I were both given conditional, two-year green cards, which will expire soon.

The problem is that my mom and my stepfather want to get a divorce. They don’t even speak to each other anymore, and we had to move out of my stepfather’s house. Now my mom is thinking about going back to Jamaica, but I’m 17 and I don’t want to leave. Can I file an I-751 petition by myself to remove the conditions on my green card?

Answer

You’re in a difficult situation. You got your green card through your mother’s marriage, and the U.S. government wants to make sure her marriage was real. If your mom isn’t interested in proving that and would rather give up her permanent residence, and your stepfather isn’t interested in helping you either, it’s going to be up to you to show that they got divorced after a marriage that was real, or else prove that making you leave the United States will cause you “extreme hardship.”

If your parents are going to get a divorce soon, you can file the required Form I-751 with U.S. Citizenship and Immigration Services (USCIS) yourself, even without a copy of the final divorce judgment signed by a judge. The government will accept your petition and then ask you for the divorce judgment later. Doing it this way is a little dangerous, however, because if there is no divorce judgment by the deadline the government gives you, your petition will be denied.

It might be better to wait until the divorce is final before you file the I-751. You can do that because there is no deadline for filing an I-751 based on a divorce. (However, if you fall out of status while you’re waiting for your parents’ divorce, the government could put you into deportation proceedings. Then you’d have to explain the whole situation to an immigration court judge.)

Just because your parents got a divorce doesn’t mean the conditions on your green card will go away. You also have to prove that their marriage was real, at least when it started. (See We're Really Married--How Do We Prove It for Green Card Purposes?) The documents to prove that might be hard to get if your parents aren’t going to cooperate with you.

If your parents aren’t going to get a divorce any time soon, you can get the conditions on your green card removed if you can prove that taking away your green card and deporting you would cause “extreme hardship” to you or someone else. If you can prove this, there is no need to prove your parents’ marriage was real. There’s no deadline for filing the Form I-751 on this basis.

You didn’t mention any abuse from your parents, but a third way of applying on your own is if either of your parents abused you or subjected you to extreme cruelty during the time they were married. You would still have to prove your parents’ marriage was real. There’s no deadline for filing the I-751 on this basis either.

When you look at Part 3 of the I-751 form, where it asks you to check a box showing the basis for filing the petition, you’re going to see two different categories of boxes. One is for “joint filing” and the other is for “waiver or individual filing request.” Because you’re not filing the petition together with your stepfather (called “my parent’s spouse” on the form), you don’t check either of the boxes under “joint filing.” Instead, you need to check at least one of the boxes under “waiver or individual filing request.” If you have more than one basis for filing the form, you should check all the boxes that apply.

If you’re filing based on your parents’ divorce, none of the boxes will exactly apply to you. You should check the divorce box even though it was your parents’ marriage and not yours.

Part 4 of the form asks for some information about your stepfather, so you might need his help in getting that information.

After you file your I-751, you will have to go to an interview with a government officer, who will ask you to explain why you’re filing the petition by yourself. The officer may ask you about your parents’ marriage as well.

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