Immigration Blog

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Divorce and the I-751 petition process

Mar 27, 2023 | Green card, USCIS

What is an I-751 petition in immigration law?

The I-751 petition process refers to the process by which married spouses must file a request to lift the conditional status of the foreign national spouse, when that spouse received his of her family-based green card based on the couple’s marriage when the marriage was less than two years old.

A conditional green card holder is required to file a petition to remove the conditions by filing Form I-751 with USCIS.

What is a conditional green card?

When you get a green card that is valid for only two years from the date it was issued, it means it is a conditional green card.

Conditional green cards are given to those who obtained the green card through marriage that was less than two years at the time the green card was issued.

If there are children who obtained the conditional green card based on a parent’s marriage, then the child’s green card will also be conditional and valid for two years.

Conditional means exactly that – the green card is conditioned on your ongoing marriage to your US citizen or lawful permanent resident (LPR) spouse. USCIS wants to make sure the marriage was not a marriage of convenience to get a green card.

Normally, within 90 days of the expiration date listed on the green card, the foreign national spouse is expected to file a joint I-751 petition with the US citizen or LPR spouse to ask USCIS to remove the conditions and issue a 10-year permanent green card. Typically, this is done through showing that the marriage is ongoing and that the couple continue to be happily married.

My marriage fell apart during the conditional period…Now what?

But what if, after getting the conditional green card, your marriage falls apart and you separate from or divorce the US citizen or LPR spouse through whom you obtained your (and your child’s, if applicable) conditional green card?

In that case, you are still required to file the I-751 petition to remove the conditions, but you CAN file it on your own, without needing your US citizen or LPR spouse to sign it jointly.  This is called a waiver of the joint filing requirement.

There are very few and specific grounds that allow you to file the petition on your own and seek a waiver of the joint filing requirement.

How do I seek a waiver of the joint filing requirement on the I-751 petition?

To request a waiver of the joint filing requirement, you need to AT LEAST show one of the following:

1) Your spouse is deceased

2) You married your spouse in good faith, but the marriage ended in a divorce or annulment

3) You entered into your marriage in good faith, but during the marriage, you were subject to extreme cruelty by your US citizen or LPR spouse

4) If you are a child who obtained conditional status based on your parent’s marriage to a US citizen or an LPR, that your parent entered into the marriage in good faith and during the marriage, you were subject to extreme cruelty or battery by the US citizen or LPR spouse of your parent OR by your conditional resident parent

5) Terminating your status and removal from the United States would result in extreme hardship to you

Keep in mind, most of these grounds still require to you to show that your marriage was bona fide, even if it ended.

Will I have to go to an interview?

You may have to go to an interview on your I-751 petition, regardless of whether you filed the I-751 petition jointly with your spouse or filed it on your own requesting a waiver.

You should be prepared to discuss the details of your marital relationship in detail at your interview.

Working with a family based immigration lawyer can ease your worries when it comes to filing an I-751 petition.

I have helped many clients in situations where their marriages fell apart during the two-year conditional status period.

So don’t despair if your marriage fell apart and you need to now file a petition to remove conditions and you don’t know what to do if your spouse cannot file it joint with you! Contact me to discuss your situation and let me see how I can help you!

Ruchi Thaker