I-751 Waiver for Conditional U.S. Residents in a Divorce

How a divorcing conditional resident may be able to succeed with an application for a green card.

If you are a conditional resident who obtained that status  through marriage to a U.S. citizen, but are now in the midst of divorce proceedings, you haven't necessarily lost your right to a U.S. green card (lawful permanent residence).

However, a lot will depend on the timing of your divorce, the date upon which your conditional residency expires, and whether you can prove to U.S. Citizenship and Immigration Services (USCIS)  that your marriage was bona fide in the first place.

See Divorce Issues for a U.S. Immigrant or Permanent Resident for information on the general immigration issues caused by divorce.

When Will Your Conditional Residency Expire?

Conditional residency expires  two years after its approval. Check your green card for that exact date, and keep track of it carefully. Within 90 days before the expiration date, you'll need to submit USCIS Form I-751,  asking to convert your  conditional residence into permanent residence. Being in the middle of a divorce is not an excuse for submitting this form late. And once you've passed the expiration date, you're out of  status, and USCIS will place you into immigration court proceedings, most likely leading to your removal from the United States.

When Will Your Divorce Be Final?

Oddly enough, once you've started divorce proceedings, the ideal situation is for the divorce to be finalized before you have to submit your Form I-751. With a final divorce, you can  submit  Form I-751 without the help of your U.S. citizen spouse, by asking  for a  waiver of the usual joint filing requirement and proving that, while your marriage was bona fide, it was ended by divorce, but you still wish to pursue a U.S .green card.    

If your divorce will NOT be final before you submit your Form I-751, your  situation gets complicated. You can't apply  for the divorce waiver, so what can you do?  Ideally, under this circumstance, your spouse will still be willing to file the I-751 jointly with you, which is the "normal" way this form is filed, reaffirming that your marriage was valid.

But what  if  your spouse isn't willing to file jointly with you? You may, depending on circumstances, qualify for one of the other waivers of the joint filing requirement; perhaps  one in which you show that your marriage was entered into in good faith but  you were battered or subjected to extreme cruelty by  your U.S. citizen spouse; or one showing that  termination of your permanent residency and removal from the United States  would result in extreme hardship.

Do You Qualify for the Divorce-Based I-751 Waiver?

Again, to qualify for this waiver, you'll need to show proof of a final divorce, and that your marriage to the U.S. citizen was legitimate in the first place. All of this will require attaching copies of documents to your Form I-751; not only the divorce decree, but evidence of your bona fide marriage (collected AFTER your initial approval for residence), such as children's birth certificates, affidavits from marriage counselors who tried to help you patch things up, financial records showing that you shared bank accounts and debts, joint leases or mortgages, and so on.

Get Professional Advice

Dealing with a divorce when one is a conditional resident is complicated, and you'd be wise to retain  an experienced U.S.  immigration attorney.  The attorney will assist in preparing and filing the I-751 form and suggest convincing evidence to  prove that your marriage was bona fide; or help apply for a different waiver if the divorce  doesn't come through in time.

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