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Home | Immigration Law | I-751 Waiver
If you (the green card applicant) and the U.S. citizen divorce before two years of marriage, you can still file the Form I-751 Waiver
Petition to Remove Conditions on a green card to continue living in the U.S. The process will be a little more complicated since you must request a waiver of the joint filing requirement. In the case of a divorce, your task is to gather enough documentation to show that the marriage was a good-faith marriage, or bonafide, and was not just an “easy” way to get a green card. This could include proof that you have children, evidence of shared resources, a family home, shared insurance and estate documents, photographs, gifts offered, correspondence between the applicant and the U.S. citizen, etc. Another task is to prepare evidence of why the marriage ended to prove it was not your fault. For instance, the applicant can provide evidence of having attempted marriage counseling. Also, the longer the marriage lasts, the better to prove it was a bonafide marriage.
If you received a green card through marriage (formally known as Adjustment of Status), and your marriage was less than two years old at the time of approval, you received a conditional green card (CR1) that lasts two years. When this period expires, you need to move from the conditional permanent resident status to the Permanent Resident Status. This is usually done by submitting jointly with your spouse the I-751 form petition to remove conditions on residence, which, when approved, grants you a green card that is valid for ten years (IR1). But what happens when this is not an option? What if, due to different circumstances, you are no longer together with your spouse? The answer is that you can still remove the conditions of your residency by filing a waiver. A new petition may not help if the former ruling applies to the current petition or if the beneficiary lost nonimmigrant status.
1. Divorce
2. Death of the U.S. citizen spouse
3. An abusive marriage
4. Extreme hardship for the conditional resident if deported
If you file the waiver before the divorce is final, you have three options:
You can file the I-751 form with a waiver based on abuse or extreme hardship in the home country.
You can file for divorce and file the I-751 form with evidence that the divorce proceedings have been initiated. USCIS will send a “Request for Evidence” within 90 days to ask for the final divorce order. However, if the divorce is not finalized within that time, you may be placed into removal proceedings.
You can wait until the conditional Green Card expires and file for a waiver when placed into removal proceedings.
Because requesting a waiver based on divorce is a red flag for USCIS, an immigration lawyer can greatly increase your chances of success.
Under the unfortunate event of a U.S. citizen passing away, the applicant may still apply to remove the conditions on their green card. To do this, the applicant must file the waiver based on the death of the petitioning spouse. If this is your case, you must submit a copy of your spouse’s death certificate. On top of this, other evidence is still required, such as evidence of the marriage being a good-faith marriage when it started.
If you are under conditional permanent residency status and need to remove the conditions of your green card, but you are no longer together with your spouse, the I-751 with a waiver can help you get your permanent green card. The last category of waivers is the extreme hardship category.
It applies if you think that you will face extreme hardship or extenuating circumstances in your home country by not obtaining permanent residency and being put into removal proceedings (eventually deported).
The term “extreme hardship” does not have an explicit definition, and it is up to USCIS to determine if the circumstances of the case presented can be classified as “extreme hardship”.
After you file the I-751 form, USCIS will issue a receipt notice confirming they received your application within 1-2 months. This receipt is known as an I-797c notice, and it will aid you in proving your permanent resident status while your I-751 application is being processed, allowing you to continue to live and work in the United States.
USCIS may submit an RFE, request more evidence, and schedule appointments with you. Indeed, most petitions to remove conditions filed with a waiver of the joint filing requirement are referred to a local office for an interview about marriage and divorce. Getting help from an experienced immigration attorney will greatly help you prepare for this process and potentially avoid an RFE.
Once the USCIS case status changes to approved, you will receive your permanent green card shortly via mail.
The Department of Homeland Security (DHS) announced a considerable increase in immigration fees starting October 2nd, 2020. Any application, petition, or request postmarked on or after this date must include payment of the new, correct fees established by this final rule.
Current (post-October 2nd, 2020) Government fees payable directly to the U.S. Department of Homeland Security are:
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