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

If you are a conditional resident but you divorce (or your marriage is annulled) before the two years have passed and you want to continue to live in the U.S. with permanent resident status, 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.

Updated by , J.D. · University of Washington School of Law

If you received U.S. residence based on a recent marriage to a U.S. citizen, your first, "conditional" green card will be initially valid for only two years. To trade that one in for a permanent green card, you will need to file another petition: Form I-751, Petition to Remove Conditions on Residence. Ordinarily, this must be signed by both the immigrant and by U.S. citizen spouse, and be submitted to U.S. Citizenship and Immigration Services (USCIS) within the 90 days before the two-year anniversary of the date the conditional green card was issued.

But if you get divorced (or your marriage is annulled) before those two years have passed and nevertheless want to continue to live in the U.S., filing this petition jointly with your spouse will be impossible. There is a possible solution, however. You can submit Form I-751 with a request for a "waiver" of the requirement that it be filed jointly. 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 you, the immigrant, if returned to your country of origin.

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

If You Divorce While Still a 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 you entered into it and was not a mere "business transaction" or fraud to skirt immigration laws. Be especially careful if your spouse included "bad faith" in the grounds for divorce presented to the court— swearing under penalty of perjury, that the marriage was fake and that you were only trying to get a green card (as further described in How Can I Protect My Immigration Status in a Divorce If I'm Still a Conditional Resident?.)

That means (as before) submitting not only the form, but various documents. To see the types of evidence that conditional residents have submitted to USCIS for this purpose, see Submitting Documentary Evidence of Good Faith Marriage With Form I-751.

You should also prepare a written explanation of 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. Try to make your explanation something that gives rise to sympathy on the part of the USCIS officer reading it.

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 your spouse 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. For more on what is necessary for hardship or abuse waivers, see Filling Out a Form I-751 With a Hardship Waiver and Filling Out Form I-751 With A Waiver Based on Abuse or Battering.
  2. File for divorce and mail the Form I-751 with evidence that you have initiated divorce proceedings (though this is risky, as explained below), or
  3. Wait until your conditional residence expires and you are placed into removal proceedings to file for a waiver.

If you cannot wait to file the I-751 until your divorce is final (as might be the case if the two-year deadline is about to expire or if you are already in removal proceedings), USCIS gives you a bit of a break. USCIS will accept your I-751 without evidence of a final divorce, and then send you a "Request for Evidence" (RFE) asking for the final divorce decree within 87 days.

Divorce proceedings can take several months or longer if contested, but 87 days might be enough time to get the final divorce decree.

If your divorce is not finalized within that time, you will most likely be placed into removal proceedings, or if you are already in removal proceedings, the immigration judge might not give you a second chance to file another 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, as listed on USCIS's I-751 page.
  • A copy of your permanent resident card (front and back).
  • 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, not a sham or fraud. 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).

Submitting 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, impotence, 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, therapist, or spiritual 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 their office). This also helps prove that the marriage was bona fide.

What Happens After You File the I-751 and Waiver Request

After you file your I-751 petition, USCIS will issue you a receipt notice on Form I-797, which will extend your conditional resident status for a period of time, currently (in early 2024) four years. The I-797 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.

Getting Legal Help

For personalized assistance with applying for lawful permanent residence based on marriage to a U.S. citizen or green card holder, consult an experienced attorney. This could be particularly helpful in a case involving divorce, since presenting compelling documents and legal arguments will be crucial to gaining USCIS approval.

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