I got divorced while my Form I-751 is pending. What should I do?

Question: I obtained a two-year conditional green card through marriage to a U.S. citizen. Before my two-year green card expired, my spouse and I submitted my Form I-751, Petition to Remove Conditions on Residence, to apply for my 10-year green card. My Form I-751 has not been approved yet, and my husband and I recently got divorced. Will my Form I-751 be denied? Can I still obtain a 10-year green card? What should I do?

Answer: If your divorce has already been finalized, you are still eligible to receive a 10-year green card. However, you should immediately notify the U.S. Citizenship and Immigration Services (USCIS) that you and your spouse have obtained a divorce. Specifically, you should mail USCIS the following items:

  • A copy of your divorce judgment, 
  • An explanation of the circumstances of your divorce and a request to proceed as a waiver case, and 
  • Any new evidence demonstrating the bona fides of your marriage that you have not already submitted to USCIS.

USCIS will continue to process your case. If an interview is required, your ex-spouse will not be required to attend. The fact that you have divorced your petitioning spouse will definitely make your green card application more difficult, but not impossible. You will need to provide as much evidence as possible to prove you had a bona fide marital relationship with your ex-spouse.

Will my Form I-751 be denied if my spouse and I divorced?

Normally, when you file Form I-751 you are swearing that you and your spouse are still legally married and continue to have a bona fide relationship. Your spouse must sign the application form and participate with you in the interview. 

If you and your spouse have already divorced by the time you file For I-751, this does not mean that your Form I-751 Petition to Remove Conditions will automatically be denied. Instead, you can request a waiver of the joint filing requirement and submit the application by yourself. 

What’s the difference between a two-year green card and a ten-year green card

Depending on how long a green-card applicant has been married to his or her spouse, USCIS will either issue the applicant a two-year green card or a 10-year green card. A two-year green card recipient is a conditional permanent resident, while a 10-year green card recipient is considered a permanent resident. 

If the petitioner and beneficiary have been married for less than than two years at the time USCIS approves their marriage green card application, the beneficiary will receive a two-year conditional green card.

Beginning 90 days before the foreign beneficiary’s two-year green card expires, the beneficiary must file Form I-751, Petition to Remove Conditions on Residence, to obtain a ten-year green card. Upon receipt the ten-year green card, the applicant is considered a permanent resident. 

The justification of the two-year green card is that marriages under two years old are considered more likely to be fraudulent than older marriages. Thus, the two-year rule is viewed by USCIS as a safeguard against marriages entered into solely for the purpose of obtaining a green card.

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