What should I do if I get divorced while my I-751 is pending?

What should I do if I get divorced while my I-751 is pending?

Question: What should I do if my marriage is deteriorating, or we have already divorced, and I need to remove the conditions from my residency? 

Answer: If you received your green card through marriage but your relationship is not going well or you have already divorced, it may still be possible to maintain your lawful permanent residency. There are several possible considerations in this regard. 

You are a conditional permanent resident if you acquired lawful permanent residency through a marriage of less than two years. You are required to file Form I-751, Petition to Remove Conditions on Residence, within ninety days of your conditional residency expiring. In general, you must file with your spouse to be granted lawful permanent residency (without conditions) and receive a green card that is valid for ten years. 

Divorce before Removing the Conditions on your Residency 

Unfortunately, it may happen that you and your petitioning spouse have actually divorced before removing the conditions on your residency. This may have occurred due to the natural demise of your relationship, battery from your spouse or extreme cruelty.  

In general, you may file to remove conditions on your residency without your petitioning spouse if you entered the marriage in good faith. A waiver to the joint filing is required however. Form I-751 actually anticipates these, and other, scenarios. 

The waivers that might be relevant to your case are: 

  • Abuse or battery by your spouse in a good faith marriage; 
  • Divorce after a good faith marriage; and  
  • Extreme hardship to you, the immigrant, if returned to your home country. 

Evidence to Submit When the Divorce has Already Occurred 

You should submit your divorce decree as well as a statement that explains your intent at the time of marriage and why the marriage deteriorated. As the I-751 waivers are discretionary, U.S. Citizenship and Immigration Services decides these cases on a case-by-case basis. If you were at fault for the demise of your marriage (abandonment or adultery), your application might be denied. However, if you divorced due to a legitimate breakdown in the marriage, or abuse or cruelty by your spouse, it would be relevant to explain these circumstances. Additional evidence might even include hospital or police records.   

Evidence to Show a Good Faith Marriage 

Entering the marriage in good faith means that you married your spouse with sincere intentions and not to circumvent the laws and fraudulently acquire legal status in the United States. It means you had plans to build a life together.   

Evidence that might be submitted in this regard and could include: 

  • Evidence of a lease agreement in both parties’ names; 
  • Purchase of an item like a car or appliance on joint credit; 
  • Utility accounts with both names; 
  • Life or health insurance showing the other party as the beneficiary; 
  • Birth of a child; 
  • Photographs showing a long dating relationship; 
  • Future travel plans together; 
  • Shared holidays with the extended family. 

This list is not exhaustive and is intended to offer some examples of how the conditional permanent resident might show his or her good faith at the time of the marriage. 

Considerations When the Parties Have only Filed for Divorce 

If you are within the ninety days prior to your conditional residency expiring, and you have only filed for divorce, you can still file Form I-751 and request a waiver. You would complete the box on Form I-751 that best describes the circumstances. This might be that your spouse battered you, your spouse died, or that the termination of your status and removal from the U.S. would result in extreme hardship, as discussed above. You would still need to submit evidence of your good faith marriage at the time of filing and/or at the interview.   

If you submit Form I-751 without a divorce decree, expect to be asked for it at some point in the process. If you have a divorce decree by the time of the interview, you should bring it. If you are not yet divorced by the time of the interview, you will typically be given a Request for Further Evidence, giving you 87 days to respond with the divorce decree, and possibly other evidence.   

Other General Considerations 

If your marriage is in crisis and you are a conditional resident, it may be advisable to file for divorce. This would enable you to have one piece of the relevant evidence to support a filing of Form I-751 alone. 

If divorce proceedings have been initiated but not yet finalized, you should submit evidence showing your good faith at the time of marriage.  

Regardless of the reason why you are filing Form I-751 alone, you should submit a statement explaining the history of your marriage and why it is over. If you have only filed for divorce, but not received a judgment yet, you should submit a copy of the divorce filing at the interview or within the extra time offered to respond to a Request for Further Evidence. Plan to include any and all proofs to show that you entered into your marriage in good faith.   

Whether you have the divorce decree at the time of the interview, or are asked to submit it at a later date, a final decision will arrive by mail.   

It is difficult to maintain lawful permanent residency when the marriage through which you acquired legal status dissolves. It can be done, however, with strong proofs of a good faith marriage and a detailed explanation of the circumstances leading to the demise of the relationship. The interviewing officer has discretion to decide if he finds your evidence and explanation of the marriage persuasive and in good faith.  

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