A divorce causes tremendous upheaval under normal circumstances, but if your green card is conditioned on your marriage, the situation may seem more stressful and hopeless. But take heart: If you wish to remain in the United States, you may still apply to have the conditions on your residence removed.
When permanent residence is contingent on marriage
Permanent resident status is conditional if it is based on a marriage that is less than two years old on the day permanent residency is granted. A conditional green card issued based on marriage to a U.S. citizen or lawful permanent resident is valid for two years. Before it expires, a married individual can file Form I-751, Petition to Remove Conditions on Residence, jointly with their spouse, to have the conditions of residence removed. (If your children became permanent U.S. residents through your marriage, you can include them in your petition if they received status at the same time or within 90 days of you. Outside that period, they have to file separate applications, jointly with their stepparent.)
If you divorce or get an annulment before the two-year conditional period ends, you can still apply to remove the conditions on your residence, but your application is governed by different requirements that seem more complicated. You will still use Form I-751, but because you can no longer submit your application jointly with your spouse, you will have to request a waiver of the joint-filing requirement. You will also have to provide a statement and evidence to convince U.S. Citizenship and Immigration Services (USCIS) that your marriage was in good faith and was not for the purpose of circumventing immigration laws. USCIS will examine your application with a great deal of scrutiny, which for many applicants may include a personal interview.
Reasons for waivers of the joint-filing requirement
There are several scenarios in which conditional resident spouses can request a waiver of the joint-filing requirement. These include if they entered into the marriage in good faith but the marriage subsequently ended in divorce or annulment, or they were battered or subjected to extreme cruelty by their spouse. Other reasons include if their spouse is deceased or if the termination of their status and removal from the country would result in extreme hardship.
Evidence that your marriage was bona fide
If you are requesting a waiver based on divorce or annulment, USCIS will demand evidence that you and your spouse shared a life together. If you had a child or children together, this is a persuasive piece of evidence. You will need to include copies of the birth certificate(s), which should list the names of both you and your spouse as parents, or, in the case of adoption, adoption records that show you jointly adopted the child or children.
Evidence that you shared a residence, such as a joint lease agreement, mortgage or deed plus home insurance policies and utility bills with both your names on them, is also compelling. Some married couples do not live together, and if this was true in your case, it will be more difficult to demonstrate to USCIS that the marriage was genuine. Be prepared to give a valid reason for your separate residences, such as one spouse needed to move to another location for work or to care for an aging parent.
You should also submit evidence that you shared financial resources, such as joint savings and checking accounts with transaction history and Federal Income Tax Returns filed jointly by you and your spouse. If you and/or your spouse were in the other’s will or you were listed as each other’s beneficiaries on life insurance and other accounts, this evidence can be submitted as well.
In addition to your own statement, you should include affidavits from your former spouse (if he or she is willing to cooperate) and friends and family members who have known both of you since your conditional residence was granted and who can speak about the personal relationship you and your spouse shared.
Other supporting evidence can include photos, travel itineraries and invoices from your honeymoon or other joint vacations and cards, letters, texts, and emails that you and your former spouse sent to each other, as well as cards and letters you received as a couple from other people.
Documents surrounding the end of the marriage
Your application must include a copy of the final divorce decree or other document showing the marriage was terminated. You should also submit a sworn statement, as well as one from your former spouse if possible, explaining the reason for the end of the marriage.
When to file
You may file your I-751 form and waiver at any point between when you are granted conditional resident status and before you are removed from the United States. If you are still married, but legally separated and/or in pending divorce or annulment proceedings, you may file a waiver request before the divorce is final, and USCIS will issue a request for evidence asking you for the final divorce decree or annulment.
Along with the application and supporting documentation, you should submit copies of your green card (front and back) and the required USCIS filing fees. Once your application is received, USCIS will issue you a receipt notice that will extend your conditional resident status for 18 months from the expiration date for your conditional card, to allow for the processing of your application. Be sure to respond to all requests for biometrics appointments and requests for additional information from USCIS.
If you are applying to remove the conditions on your residence, our firm will review your specific situation and outline the possible strategies to proceed. Barst Mukamal & Kleiner is one of the longest-running immigration law firms in the United States and provides comprehensive US immigration law services. Visit https://bmkllp.com/contact-us/.