Timing Considerations When Filing I-751 After a Divorce

After a divorce from your U.S. spouse, should you file your I-751 early? Late? Learn more about the rules and strategic considerations here.

If you became a  conditional resident  (a two-year green card-holder) based on a marriage, and the marriage ended in divorce before you and your spouse filed the  Form I-751  petition, you might still be able to remove the conditions on your residence by filing the form with a “waiver” request.

This waiver would allow you to file Form I-751 not only by yourself (without your former spouse) but also at any time after your divorce – whether before the expiration of your two-year green card or after, so long as you have not been deported (“removed”) from the United States. (In contrast, couples who file Form I-751 jointly are never allowed to file before the beginning of the 90-day period preceding the expiration of the two-year green card, and may be allowed to file after that period only if they are  excused  by extraordinary circumstances.)

This article takes a closer look at the timing issues that should factor into your considerations in preparing to file your divorce-based I-751.

Filing Divorce-Based I-751 Before Conditional Residence Ends

If you get a divorce during the two-year period of your marriage-based conditional residence, this will not automatically terminate your status. So, in principle, you should be able (if you so choose) to wait until the very last days of your conditional residence before filing your I-751. (This is assuming, of course, that you have not been accused of immigration  fraud  and U.S. immigration authorities have no other reason to try to cancel your green card.)

However, as a practical matter, there are very few reasons why you should not want to file your I-751 immediately as soon as your divorce becomes final. One perfectly good reason would be that you are waiting to gather all the  evidence  you will need to support your filing.

Another reason might be that you are not otherwise confident that your I-751 petition would be approved, and want to make sure that you take full advantage of the time that remains on your conditional resident card. The concern here would be that, if you filed your I-751 early and it was denied, then you would be placed in removal proceedings immediately – although immigration authorities do have some discretion as to when to initiate such proceedings.

Other than that, filing a divorce-based I-751 early is generally a good thing. For starters, filing early could be perceived by immigration authorities (in their discretion) as a show of your good faith disposition to proceed diligently with the legal obligations of your immigration status. More importantly, the more recent the divorce justifying your waiver request is, the clearer and the more available the evidence you need to support your case might be. Not to mention that approval of an early I-751 filing would also allow you to obtain more quickly not just the benefit of a more secure permanent status but perhaps also some personal relief in terms of closure.

But, before deciding to file immediately (or to wait), you should consider first obtaining advice and assistance specific to the details of your particular case by speaking with an experienced immigration attorney – as soon as possible.

Filing Divorce-Based I-751 After Conditional Residence Ends

Filing Form I-751 before the expiration date on one’s conditional resident card is always (without exception) better than filing Form I-751 after that date. Failing to file the I-751 within the two-year conditional residence period results in an automatic loss of lawful status and raises the risk of removal from the United States. (U.S. immigration authorities rely on computer system-generated reports to identify those conditional residents whose status has expired.)

Nonetheless, for those conditional residents who are out of status but have not yet been removed from the U.S., it is never too late to file a divorce-based I-751 petition. (Even those who have already been ordered removed but have not yet left the U.S. might still be able to file their I-751 if they manage to  reopen  their immigration court case.)

In fact, unlike late jointly filed I-751 petitions, “late” divorce-based I-751 petitions do not even need to provide any particular excuse for being late (though it might still be wise to provide a brief explanation, in good faith). It remains that any type of late petition should be filed as soon as possible to avoid the consequences of  unlawful presence  (triggered by loss of status on the expiration date of the conditional resident card).

Another kind of circumstance in which a divorce-based I-751 petition will be filed after the expiration of a conditional resident card (but, this time, without triggering unlawful presence) is when the petition follows and replaces a previously filed timely petition. This occurs typically when a divorce becomes final while a jointly filed I-751 is already  pending. In such cases, I-751 petitioners should file immediately (as soon as their divorce becomes final).

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