One of the most common immigration family petitions involves spouses of U.S. citizens. Generally, the process is relatively straight-forward: your spouse files a petition on your behalf and you can file an application for a green card at the same time. You have to provide evidence that your marriage is bona-fide, and that you are admissible in the United States. If your application is approved, you will receive a green card in the mail that is valid for two years and is given on a conditional basis. This provision in the law was created in order to prevent fraud in marriage cases and to ensure that people don’t take advantage of the immigration law.
Generally, a conditional permanent resident has to file Form I-751 with USCIS within 90 days immediately preceding the two year anniversary of the date when the conditional permanent resident obtained her status. I-751 petition has to be filed jointly with the U.S. spouse, who has to appear for an interview with you. If USCIS is satisfied that the marriage is bona fide, it will approve the petition, the conditions will be removed, and a new green card will be issued valid for 10 years.
Problems arise when your relationship does not work out as planned. What are you supposed to do if the relationship breaks down and you get separated or divorced, or if your spouse refuses to file a joint petition with you?
The conditional permanent resident can request a waiver of the joint filing requirement and file I-751 petition by herself in one of the following circumstances:
1. If her departure from the United States will result in extreme hardship;
2. The marriage was entered in good faith, but it was terminated through divorce or annulment;
3. The marriage was entered in good faith, but your spouse subsequently died;
4. The marriage was entered in good faith but the U.S. citizen spouse or parent battered the conditional permanent resident or child or subjected them to extreme cruelty.
You do not have to be officially divorced to apply for a waiver based on extreme hardship or battering, and it can be filed either before or after the two-year period has expired. Unlike those kinds of waivers, a waiver of the joint filing requirement based on divorce is only available after the parties have already divorced.
There might be circumstances where the parties are separated or have filed for a divorce prior to the two-year mark. In such cases, there are several options available.
If your spouse refuses to file a joint I-751 petition with you, and you are separated or filed for a divorce, you can file I-751 waiver petition by yourself. It needs to be filed timely, within 90 days of the two-year mark. After it’s processed, USCIS will issue a Request for Evidence (“RFE”) for additional documentation regarding your divorce and will give you 87 days to respond. Hopefully, within 87 days you will have your divorce decree, which you will mail to USCIS. After its receipt, USCIS will review the petition and will determine whether you established that your marriage was bona fide.
If your divorce is not yet final before the RFE deadline, your I-751 petition will be denied and your case will be referred to the immigration court. You will then be given an opportunity to establish your eligibility for a waiver in front of an immigration judge. If you need time to finalize your divorce, you can request a continuance from the immigration judge.
Suppose you and your spouse filed a joint I-751 petition, but you are legally separated or already filed for divorce, what are the options here? Just because your marriage is in trouble, does not mean that your petition will be automatically denied. However, that might raise red flags regarding your good faith when you got married, so you should be prepared to provide a lot of evidence showing that your relationship was genuine.
In case of a jointly filed petition that makes it clear that the parties are separated or filed for a divorce, USCIS will also issue an RFE requesting a divorce or annulment decree and asking whether the parties would like to have their petition treated as a waiver petition instead. Upon receipt of the necessary documents, the I-751 will be converted into a waiver petition. This is a simplified process allowing the conditional permanent resident to buy some time to finalize the divorce proceedings.
Depending on the strength of the evidence showing the bona fides of the marriage, the case will be approved, denied or assigned to an in-person interview. If the case is denied, it will be referred to the immigration court where you would be able to present your case again.
If you filed a joint petition and your relationship was fine at the time, but later you got separated or divorced, you will have to notify USCIS of the latest developments by mail.
Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.