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. 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:
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 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 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.
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:
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 little bit of a break. USCIS will accept your I-751 without evidence of a final divorce, and then send you a “Request for Evidence” 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 judge might not give you a second chance to file another I-751.
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:
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:
After you file your petition, USCIS will issue you a receipt notice on Form I-797 that will extend your conditional resident status for one year. 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.