As a Conditional Resident, What If I Divorce While I-751 Pending at USCIS?

Possibilities for requesting a waiver or filing a new I-751 when the U.S. petitioner and conditional-resident immigrant file for divorce after the I-751 has been filed with USCIS.

By , Attorney · Florida Coastal School of Law

There's an obvious reason U.S. law contains a two-year "testing" period for relatively new marriages between foreign-born spouses of a U.S. citizen or permanent resident by giving them only a conditional green card, not a permanent one: Not all marriages last this long. In some cases, they weren't bona fide marriages in the first place. Thus this conditional resident period gives U.S. immigration authorities a chance to root out marriage fraud. But "real" marriages can fall apart, too. The timing of the divorce becomes especially important if the foreign-born spouse wishes to continue living in the United States following the breakup and receive U.S. lawful permanent residence.

Here, we'll discuss a situation where the binational couple files the I-751 petition to go from conditional to permanent residence jointly (perhaps separated at the time, but on good terms) but then the U.S. petitioner files for divorce. It's less than idea timing in the sense that, had the couple divorced before filing the I-751, the immigrant could have simply applied solo, by including a request for a waiver of the joint filing requirement.

Since it's too late for that, the question is, what's next? Will U.S. Citizenship and Immigration Services (USCIS) deny the I-751 and place the immigrant into removal (deportation) proceedings? Not necessarily, as we describe below. The two main possibilities include that:

  • USCIS approves permanent residence despite the pending divorce, or
  • the foreign national files a new I-751 petition to remove the conditions on residence.

USCIS Could Still Approve I-751 Petition Even After Marital Breakup

First of all, the simple fact that your U.S. spouse filed for divorce, or that you were physically and/or legally separated at the time of filing the I-751 Petition to Remove Conditions on Residence is not enough for USCIS to automatically deny the I-751 petition (assuming it even knows about it).

USCIS might, at most, send 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, while ample evidence on your record already showed that your marriage had been entered into in good faith, your petition could still be granted.

Once your divorce becomes final, however, you should 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.

Conditional-Resident Immigrant Could Instead Submit New I-751 Petition to USCIS

In the alternative, the immigrant could file an entirely new I-751 petition, along with a waiver request based on the divorce and/or other grounds, such as extreme hardship or abuse. Indeed, there is no legal limit on the number of I-751 petitions a person may file—although practically speaking, submitting multiple filings could confuse U.S. immigration officers and, therefore, delay the adjudication of the case.

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

Getting Legal Help

Given that your situation is unusual, consider hiring an experienced immigration attorney. The attorney can analyze the facts of your case and spot any potential red flags that might cause USCIS to believe your marriage wasn't bona fide in the first place, gather supporting documents and prepare the paperwork and a cover letter that summarizes why your case deserves a favorable decision, and monitor progress toward approval.

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