i-751 waiver

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I 751 Waiver: When filing jointly with your spouse is not possible

I 751 waiver: when filing jointly with your spouse is not possible..

If you received a  green card through marriage  (formally known as Adjustment of Status), and your marriage was less than 2 years old at the time of approval, you received a conditional green card (CR1) that lasts for 2 years.  When this time period is about to expire, 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 10 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 might still be able to remove the conditions of your residency by filing a waiver.

There are basically 4 circumstances by which a waiver is possible:

– Divorce – Death of the U.S. Citizen Spouse – An Abusive Marriage – Extreme Hardship for the Conditional Resident if Deported

Let’s discuss each one of them.

Filing an I 751 divorce 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 Petition to Remove conditions on green card to continue to live in the U.S. The process will be a little more complicated though, since you will have to request for 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 bona fide, and was not just an “easy” way to get a green card. This could include proof that you have children together, evidence of shared resources, a family home, shared insurance and estate documents, photographs together, gifts offered or correspondence between the applicant and the U.S. citizen, etc. Another task is to prepare evidence of the reason 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 bona fide marriage. 

Can you file the waiver before the divorce is final?:

If you must file the waiver before the divorce is final, you have 3 options:

• – You can file the i 751 form with a waiver based on abuse or extreme hardship in the home country (more details about this option in section below).
• – 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 decree. However, if the divorce is not finalized within that period of 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 (especially when trying to prove the marriage started as a good faith marriage).  Contact us at (213) 375-4084 to get our help.

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Filing a waiver after death of spouse

Under the unfortunate event of the U.S. citizen passing away, the applicant may still apply to remove the conditions on his/her green card. In order to do this, the applicant must file the waiver based on the death of the petitioning spouse. If this is your case, you would have to 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 started.

Filing a waiver due to an abusive marriage

If you were a victim of violence, were battered or subjected to extreme cruelty, you can waive the requirement of the joint filing of the i 751 form. In order to submit this waiver, you will have to submit evidence of the abuse. If you ever reported domestic violence events, if you ever made a record of injuries (medical reports for example), these can be used as evidence. The USCIS understands that having concrete evidence of violence is not easy and that most cases of abuse and violence happen inside of the house without witnesses and are known only to the couple, so they have stated the following:

“NOTE: With respect to abuse  waivers , you may file your  form  with any credible evidence relevant to the  application . The determination of what evidence is credible and the weight to be given is within the sole discretion of  USCIS .”

If you are under the unfortunate circumstance of an abusive marriage, please do not hesitate in contacting us at (213) 375-4084 so we can help relieve the weight of the immigration matter.

Filing a waiver due to extreme hardship in home country if put into removal proceedings

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 by not obtaining permanent residency and being put into removal proceedings (eventually deported) you will face extreme hardship or extenuating circumstances in your home country. 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”.

What happens after you file the I 751 form with a waiver?

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 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 or request more evidence and schedule appointments with you. Indeed, most petitions to remove conditions that are filed with a waiver of the joint filing requirement are referred to a local office for an interview about the 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 be receiving your permanent green card shortly via mail. 

How much is the filing fee?

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:

• – I-751 Petition to Remove Conditions on Residence: $760
• – Biometrics: $30

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I-751 waiver applications

If you become a resident based on a recent marriage (less than two years) you become a “conditional” permanent resident (green card holder). Normally, you would file a petition with your husband or wife two years later to become a full permanent resident. If the marriage ends before your petition is filed – or your spouse refuses to cooperate with your petition – you may still be eligible to become a permanent resident.

What do you need to prove for an I-751 waiver?

There are three different ways that you can apply for an I-751 waiver.

• Divorce + good-faith marriage . If your divorce is finalized by the deadline for your I-751 petition then you can use this option. You may also use this option if your spouse has passed away. The I-751 petition is due two years after your conditional residency card was issued. If your divorce is almost finalized USCIS will generally grant a short additional window for you to file proof of the finalized divorce (but the I-751 petition still needs to be filed on time). To use this strategy you are also required to show that the marriage was genuine. To prove that we use the same sort of evidence you may be familiar with from your initial marriage-based application process.
• Abuse by U.S. spouse. If were abused by your U.S. spouse this option may be available to you. The abuse does not need to be physical in nature. Event purely psychological abuse can serve as the basis for a successful I-751 petition. In such cases we would typically recommend submit an evaluation by a psychological expert.
• Extreme hardship. The final way to seek approval of an I-751 waiver is by showing the hardship you would experience if you were forced to return to your home country. See below for more information about proving hardship.

Whose hardship matters?

For I-751 waivers, USCIS looks at whether the petitioner would experience hardship if forced to leave the U.S. In other waiver applications the focus is on family members, but here the focus is on the petitioner herself.

What factors will be considered?

Immigration law does not define the term “hardship”. Instead, court cases have said the following factors should be considered: age; length of presence in the U.S.; family ties to the U.S. versus to the foreign country; community ties; financial impact; health issues; and, the availability of immigration benefits.

What evidence is presented?

It is very important to present strong evidence in support of a hardship case. The attorney will work with the immigrant, family members, and friends to write detailed letters explaining the circumstances of the case. These letters must be carefully prepared to address the relevant legal question. The attorney will also work with you to locate records that support your case, including medical, financial, employment and education records. In cases with special health or psychological circumstances, it may be useful to have a psychologist conduct an evaluation.

This Post Has 42 Comments

Hi, I am in a dilemma. I had filed my i751 jointly but my marriage is on the rocks. Me and my wife are getting divorced. But I’m confused Where to send my waiver request after getting the divorce decree. I mean what is the address to send waiver request along with cover letter explaining to switch my case from jointly to solo. Appreciate your response.

Hi, Habeeb: Sorry to hear about the challenging times. You can find the filing addresses for the I-751 here: https://www.uscis.gov/i-751-direct-filing-addresses . Those apply both to jointly filed I-751s and if the petition is filed as a “waiver.” Best, Greg

I have my Removal of conditions I-751 interview this month. Received Notice of Action . It does not mention that my spouse should accompany me. It says the only people who can accompany are – your lawyer if you have one, an interpreter if you have one.

I believe usually the applicant and the sponsor spouse are to be at the interview. Please advise.

Hi, Ash: If you filed a joint I-751 petition then yes, your US citizen petitioner will normally be allowed – and expected – to attend with you.

I read about many examples where the US Citizen spouse was able to withdraw a jointly filed I-751. USCIS then sent a withdrawal letter to the alien spouse and marked the case as withdrawn (=never filed). The alien spouse had to refile a new I-751. 1- Isn’t USCIS supposed to give the alien spouse an option to switch to a divorce waiver before completely withdrawing the petition (especially if the alien spouse advises them of upcoming divorce proceedings)? 2- Will USCIS likely mark the case as A-fraud level simply due to the US spouse withdrawing their signature on the I-751?

Hi, Tosi: USCIS doesn’t provide any legal advice to I-751 applicants, or anyone else. The applicant is on their own. In this case it sounds like the foreign national will have to re-file based on one of the waiver grounds. Best, Greg

I filled the I-751 waiver in July 2020 and got my divorce finalized in Jan 2021. My attorney has submitted the divorce as supporting documentation in March 2021 and after that, I received the biometrics appointment notice. Within the biometrics being requested, does that means will be called to an interview? My case has been well documented. Please share your thoughts.

Hi, Laura: USCIS is doing interviews across the board on I-751s, unlike the good old days, so you can bank on an interview in your future. The ACS appointment, though, doesn’t have anything to do with that – it’s just a procedural step that happens in all adjudications of this type. You can keep up with your local office’s processing times at https://egov.uscis.gov/processing-times/ .

I am awaiting my 751 interview. I filed jointly with my wife a while back when we were still together. Since then we have separated, and a while later filed for divorce. I just received notice from USCIS that my case is ready to be scheduled for an interview, but I also just received the letter saying my divorce is final. Should I file 751 again with updated information or should my ex-wife and I just go to the interview together and explain everything to them? My wife and I have been separated for about 3 years and I now have a new girlfriend who is pregnant with my child, so I really cannot risk having to leave the country.

Hi, Mark: These situations are definitely dicey, and I would strongly encourage you to have a lawyer present at the interview. At least two things could happen. They could process the joint-filed I-751 as it stands, since it’s legally approvable with her signature even if she doesn’t attend the interview. But CIS is strict about interviews, especially these days, and if she doesn’t appear they could certainly deny the I-751. Alternatively, you can seek to amend the I-751 at the time of the interview to base it on good faith marriage plus divorce. In that case you need to bring your divorce decree (certified copy) and any available documentation about the bona fides of the marriage. I realize that’s made harder by the fact that I-751s take so long these days. Again, I would strongly recommend having a lawyer there for this sort of change-of-strategy situation. Best, Greg

Thanks Greg. So having my ex-wife go to the interview with me and explain the situation together would not help? We could definitely provide proof of a good faith marriage and of the divorce.

Question for a friend: she was in a bona fide marriage and after they had sent I-751 they decided to divorce. He said he didn´t mind her keeping her GC. She went to her home country to visit family and friends and he entered withdrawal. Could he have done that, in the first place, considering SHE was the petitioner? Thank you in advance.

Hi, Tania: In an I-751 petition filed by both US citizen sponsor and conditional resident, both signatories are technically petitioners. So either has the legal standing to withdraw their own support of the petition prior to approval. But she can switch strategies and pursue a “waiver” I-751 based only on her own signature and showing good faith marriage plus termination of the marriage through divorce.

My conditional green card will expire in Sept 2020 and my divorce is pending. When would the immigration office issue RFE requesting for final divorce decree after I file for I-751? Immeidately?

Hi, Jessica: Yes, if you file on the basis of good faith marriage + divorce then they will request a copy of the dissolution decree. They are supposed to give you additional time to get it if the divorce is pending. Best ~ Greg

I am married to a foreign woman with a conditional gc. She has been disappearing more and more since she got the gc. I found out she’s working as a sex worker/stripper even before she got the gc and permission to work. When I expressed to her I was not ok with it at all she got irate then after calming down has offered me money to stay married. I also found out after her getting here that she was involved in a fake marriage to obtain a green card approximately 10 years ago as well as being arrested approximately 5 years ago for a fake European passport/green card. Recently she has left the house for nearly a month with minimal contact and saying she needs time to think. I feel duped and don’t want to be involved in her scandal. I have an appt with a divorce attorney soon. Can she still get a waiver? We have zero joint assets or accounts. She started a separate bank acct shortly after acquiring her gc.

Hi, Dani ~ So long as she didn’t marry you primarily for immigration purposes then she hasn’t done anything illegal. If her marriage – in her eyes – was in good faith, then yes, she has an approvable I-751. Best, Greg

Hi. I had my citizenship interview with pending I 751and passed the test. My interview officer gave me my oath ceremony application.Day after immigration called me and says that my oath is canceled due to I 751. God with them.my question is this.I want to move to different state for specific education.Can i move and change my driver license so i can work part time while i am student.Wife will stay our base home.?Thank you in advance.

Not sure that I understand the question. I don’t see why an N-400 would be canceled due to an I-751, unless your I-751 was denied and you aren’t a resident anymore. Or if you didn’t file an I-751 when required to.

A driver’s license doesn’t have anything to do with work authorization. So regardless of where you move and what driver’s license you get, that doesn’t change your work status.

I am filing an I-751 form to remove a condition on my 2 year GC. I’ve gathered all of my evidences and feeling that things should be ok. I filed for divorce but it won’t be finalized until February 2019. My Greencard is expiring by the end of January 2019 so I cannot wait longer. I have a question about when filling. There are two boxes that I have to choose “Married” or “Divorced” Should I choose Divorced and say “pending” in the next box that asks me when my marriage has ended?

No, you’re either married or not. You remain married until the divorce/dissolution is finalized and should report that on your I-751.

Hey KS, How was for you fill the the 751with the divorce? Are you afraid to be rejected?

Hello, I am a US Citizen and I married a foreign. He received the 2 year temporary visa which was going to expire November 6th 2018. He filled on October 25th for adjustment of status. Back in July of 2017 there was a Domestic Violence case. He assaulted me. I called the cops and he was detained for about 10 hours. I did drop charges but he still has a misdemeanor on his record. We have been separated since September 2017. I want to file for divorce, He has threatened me verbally many many times and I would like for him to be removed from the US. What do I have to do ????

Hi, Juliana. Very sorry to hear about the problems. A U.S. citizen has the right to withdraw a Form I-130 petition and Form I-864 affidavit of support up to the time the petition is approved and residency granted. You should talk to a lawyer right away about getting your withdrawal filed if that’s what you are interested in pursuing.

Hello, My current conditional Green Card Expires Jan 10/19. I filed an uncontested divorce Sept 26/18. The County clerk said it should take around 4 months for a judge to look at my case (So around Feb 01/19)

I have evidence of a bonafide marriage. Would it be best for me to file I-751 and also include evidence that my divorce has been filed? I have a stamped and dated note of issue from the county clerk, and also my case is listed on the court’s website.

From what I’ve read on your website they would send me an RFE for the divorce decree after I file I-751 and that would buy me around 3 months. Will I be able to continue to work legally after I send in the I-751 with the evidence I have up to this current point?

Will I have to do an interview with USCIS once I send in the divorce decree and talk about my marriage?

You can file the I-751 only 90 days prior (not more) to your card’s expiration. So it seems you have plenty of time to finalize the divorce. Whether the “good faith” marriage or a another strategy is better for you depends on the facts of your case.

Yes, once you I-751 is filed you will get a notice showing that you are eligible to work for 18 months while the case is pending. You can get additional extensions stamps too .

And yes, you will almost certainly have an interview for your I-751.

Hi, My friend is currently thinkingto divorce her husband. Her conditional GC will expired in Mar 2019. She will need to file 1751 next month to removed the conditional status. The question is, if she and the spouse filed a divorce and both sign the divorce paper, (this may take 90days to finalize it.)can she use this document and send it with the waive along the other evidence (to prove this is a legit married)?She also wants to move to different state and get her own apartment while applying for waiver.

If she files the waiver-based I-751 without the finalized decree then she’ll be given additional time to provide it. But the uncontested divorce petition isn’t enough by itself.

I need to file I 751 divorce waiver, my green card expires on 12 of January next year, and my divorce will hopefully be final by the end of the January next year as well. What should I do, since requirement for filing 751 divorce waiver is final divorce? Thank you, looking forward to hearing from you

If you file without the final decree then you will get a request for evidence giving you about 87 days to respond (so basically an additional three months).

Hello. How are the chances for a i751 with a divorce waiver pass the requirements of the ucis? I have many proofs of bona fide marriage, but still worried my petition be rejected.

Hi, Daniel: I’ll put it this way. We have never – knock on wood – had a I-751 waiver case denied. So long as the marriage was indeed legitimate, ultimately the case should be approved (subject to all the other legal requirements, of course). There’s no easy rule of thumb as to how much evidence is required. But err on the side of filing a *lot* of evidence, since USCIS has gotten very harsh with processing these cases. Best, Greg

What happens if an american citizen spouse files a divorce when his/her spouse who have temporary resident card and is in two year process is out of country for a wedding in family?

What exactly is the question? You have to get the I-751 filed as a waiver… and if you’re out of country when your status expires that is going to be serious problem for you.

Hi. I live in California. My US citizen wife asked me to forge her signature for a home loan worth $250,000 and now we’re fighting she said she can use that agaisnt me. Will I get deported for forging her signature even though she asked me to? Thank you.

Hello..I h received conditional green card that expires on sep 24,2018..and I mailed my I 751 green card extension form on aug13,2018.i haven’t received receipt notice from uscis yet neither has the application fee been deducted yet.. how can I get the process expedited? And also will I be allowed to continue to work Incase I don’t hear back from uscis by my green card expiration date?.your guidance is much appreciated.thanks!

Unfortunately, there is no way to expedite the processing. You can contact USCIS customer service, though, to place a case inquiry request. Although I-751 processing is badly delayed, you should have gotten the receipt by now. Check out this page for a downloadable letter that you can try to show your employer as proof of status.

I have found out my husband has been videotaping me while drunk and plans on using this information against me to file a divorce after our interview with immigration for him to receive his temporary green card . He also claims he is emotionally abused when in a fact it the opposite.

Lee, did you have a general question we might be able to answer for you?

My husband is on his conditional card. He does not live in my home. He threatened to shoot me, because I told him I was not signing off on his 1-751 to be removed… He brought all his kids here and wants me to file for them too. His kids mother is trying to get her papers thru her mother in New York City.. I currently have a PFA on him for protection. He has to turn his gun in to Police station.. I pressed charges on him for terroristic threatening of shooting me with his gun. He has pistol whipped his sister in front of me and her two year old daughter. He has never taken me to meet his family in Jamaica.. He takes constant trips back there and stay for a month at a time, but goes back four times a year, including other places.. He has brought his father here in the states to get hip surgery done.. When his son and daughter comes his son mother comes he takes them on trips and vacations without any knowledge. I’m not on any of his businesses, credit cards, debit cards, He moved out in March of 2018 and the gun threat started after he moved out… Now I’m feeling that I’m a victim of marriage fraud… Because after marriage he moved with his sister and only kept his name on the gas and electric bill so there is trace that he stays there. He has not changed his address with immigration. We have only two things jointly, bank account that only has 2.87 and a gas and electric bill.. when his sister moved he came back and lived in my basement for 1 1/2 yr and when my son came home he came to sleep in the bed with me, but he had a seperate blanker sleep far to the edge of the bed wrapped in the blanket with his back turned towards me.. When he came back he came in with a king size pillow top bed, 50 inch flat screen tv and a dresser. I’ve seen pi’s with him on dates with other woman. After our interview no more dates, pics and other things married couple do.. And the abuse and abandonment worst as it got close to signing. Then all of a sudden he wants to be nice.. This is the worst marriage ever!!!!

Hello, I’mlooking for a second opinion. I’ve been assisting a friend whose conditional green card is soon to expire. He has an immigration attorney who will be filing a waiver on his on his behalf based on the marriage falling apart. The issue is that the attorney seems resistant to filing prior to the divorce being finalized. The couple separated in Jan but did not meet the grounds for divorce in one of the 2 states they resided in, and residency requirement in the current state until recently. Keep in mind the US citizen (spouse) does not want a divorce and/or is refusing to divorce in an effort to prevent the conditions from being removed. Is there a provision in the law that provides an exception to this situation for not filing on time AND will the individual still legally be able to work while “out of status”?

Hi, Angela. A couple things.

(1) If your friend wants a second opinion she really needs to sit down with a second attorney. It’s really impossible to offer much input here about whether the first attorney is doing things correctly or not.

(2) There are multiple grounds (three) for getting an I-751 approved when a couple is separating. One is showing divorce + good faith marriage. To win on this ground – which is often the easiest – you need a final divorce decree. If the divorce is being contested then that can really draw out the process. If the attorney is advising to wait for the decree that is potentially good advice as you will get a Request for Evidence if you don’t provide the decree.

(3) If the I-751 is not filed by the 2-year deadline then your friend will automatically be out of status.

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I-751 Waiver Where Your Marriage Ends in Divorce

Most foreign-born persons who marry U.S. citizens apply for a green card in order to remain in the U.S. with their spouse. In order to become a permanent resident, they must first file for a 2-year conditional green card , and then submit form I-751 to apply to remove the condition and obtain a 10-year green card.

But what if your marriage ends in divorce or annulment before the 2 years are up? Can you still keep your green card? Will you be deported?

In this video, Immigration Attorney Carl Shusterman (former INS Trial Attorney 1976-82), whose law firm has prepared hundreds of successful I-751 waivers over the past 30+ years, explains how to prepare and submit an I-751 waiver if your marriage has ended before your 2-year green card expires. The key is to document your I-751 waiver as completely as possible. Include proof of joint assets, income tax returns and, if possible, detailed affidavits from your former spouse and his/her relatives.

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Expect to be interviewed at length by an USCIS immigration examiner concerning the bona fides of your marriage. Should your waiver be denied, you may renew it before an Immigration Judge in removal proceedings.

I-751 Waiver Resources

• Green Cards through Marriage
• Remove Conditions on Permanent Residence Based on Marriage (USCIS)
• I-751 Petition to Remove Conditions on Residence (USCIS)
• Introduction to I-751 Petitions (ILRC)

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Carl Shusterman

Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.

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Home » Blog » I-751 Waiver After Divorce: Filing without the Ex

I-751 Waiver After Divorce: Filing without the Ex

August 10, 2021 Replace/Renew Green Card

Conditional residents that obtained a two-year green card through marriage will typically file a joint petition using Form I-751, Petition to Remove Conditions on Residence , within the 90-day period before it expires. The conditional resident normally files jointly with the spouse. Once approved, U.S. Citizenship and Immigration Services (USCIS) grants the conditional resident status as a lawful permanent resident and provides a 10-year green card. But what if the conditional resident gets a divorce or annulment before the two-year period ends? Or what happens if the spouse is abusive and refuses to file the joint petition? The I-751 waiver after divorce provides a solution to this difficult situation.

USCIS will allow a conditional resident to remove conditions on residence after divorce or other events that make it impossible to file a joint petition with the spouse through whom he or she gained conditional residence. In these cases, the conditional resident must file the petition with a request that the joint filing requirement be waived, commonly known as a waiver. The conditional resident can still become a lawful permanent resident, but it’s not a simple matter. The stakes are high. USCIS will more closely scrutinize the I-751 petition. And an unsuccessful petition may result in removal proceedings for the conditional resident.

I-751 Waiver Also Requires a Good Faith Marriage

If a marriage has been terminated due to death or divorce, and even if the spouse has abused the conditional resident, there’s still an important requirement to prove it started as a good faith marriage . The I-751 waiver after divorce is not a free pass; you’ll need to prove your intentions were honest when you entered the marriage.

USCIS wants to verify that the you entered the marriage for love, not for a green card. A good faith marriage is one that is built on love and starts with the genuine desire to build a life together. A fraud or sham marriage is when an individual enters into the marriage for the purpose of going around immigration laws to falsely acquire immigration benefits.

USCIS can’t know what happens inside the privacy of a couple’s home. Therefore, USCIS needs the petitioner to prove his or her own good faith marriage by presenting evidence. Anyone attempting to file to remove the conditions on residence with a waiver after divorce needs to understand that there is still an important requirement to prove a good faith marriage. Wedding records, birth certificates of children, and joint financial records are examples of documents that can be used to prove a good faith marriage.

RECOMMENDED: 33 Great Documents for Proving a Bona Fide Marriage on an I-751 Petition

Waiver Creates Additional Burdens of Proof

By not filing jointly with the spouse through whom conditional residence was gained, a petition automatically raises red flags. There is a burden of proof for the single petitioner to prove that he or she originally entered the marriage in good faith and the marriage cannot continue through no fault of the petitioner.

As you may notice when reviewing Form I-751, there are multiple options for filing with a waiver to the joint filing requirement. And multiple choices may apply to your situation. But the option selected and the strategy for proceeding may have benefits and drawbacks. Discuss it with an experienced immigration attorney . The options that may (or may not) apply to this situation include:

• Option A : I entered the marriage in good faith, but the marriage was terminated through divorce or annulment.
• Option B : I entered the marriage in good faith, and, during the marriage, I was battered, or was the subject of extreme cruelty, by my U.S. citizen or permanent resident spouse.
• Option C : The termination of my status and removal from the United States would result in an extreme hardship.

How to File an I-751 Waiver after Divorce

To file Form I-751 with a waiver to the joint filing requirement, the following items should be included in the package:

• USCIS filing fee (as listed at USCIS )
• A copy of both sides of your permanent resident card
• A copy of the divorce decree or annulment document that ended your marriage. (If not available, include evidence that the divorce proceedings have started.)
• Evidence of a “good faith” marriage. See 33 Great Documents for Proving a Bona Fide Marriage on an I-751 Petition
• Evidence regarding the circumstances surrounding the end of your marriage (see below)

Other Evidence

A personal statement and evidence describing the circumstances of your divorce or pending divorce can also be helpful for the I-751 waiver.

• No-Fault Divorce : If your divorce was due to irreconcilable differences or a mutual decision to terminate the marriage, you can explain that the divorce was a no-fault action and the differences that led to the end of your marriage. Examples of irreconcilable differences can include: disagreements about whether to have children, where to live, or anything else that is relevant. If you attempted to save the marriage through marriage counseling, you can include records (e.g. invoices) or proof that you attempted to get counseling.
• Divorce by Fault of Ex-Spouse : In some cases a divorce is forced by actions of a spouse. The divorce may be the result of the spouse’s actions such as adultery, abandonment, impotency, or imprisonment. In these cases, you can submit a copy of the divorce or annulment petition that alleged those fault grounds or other evidence that supports the claims.

Any statement made that suggests you were “at fault” in the divorce can have a negative effect on your case. If you believe the divorce was the result on your actions (e.g. adultery, abandonment, etc.), it’s even more important to seek advice from an experienced immigration attorney .

When filing Form I-751 jointly with a spouse, the petition must be filed within the 90-day period before the conditional resident’s green card expires. When filing with a waiver after divorce, the petition can be filed any time after conditional resident status is granted and before the conditional resident is removed.

Waiver When the Divorce is not Final

In some cases the conditional resident’s status may expire before a divorce is final. Divorce proceedings can be very lengthy and interfere with the expiration date of conditional residency. In these cases, there are multiple options which include (but are not be limited to):

• File I-751 with evidence that you have initiated the divorce proceedings (and perhaps copies of scheduled court dates related to the divorce)
• Wait to file I-751 until conditional resident status has expired and you are placed into removal proceedings

In these cases the conditional resident should always consult with an experienced immigration attorney that can provide advice on the best strategy for the petitioner.

If the conditional resident chooses to file Form I-751 with a waiver based on divorce, USCIS will want proof that the marriage has been terminated (e.g. divorce decree or annulment) before it is granted. Therefore, it is helpful to your case to provide evidence that the divorce has been initiated. Examples of acceptable evidence include the court documents that demonstrate the case is in process. In most cases, USCIS will mail a receipt notice (Form I-797C) that extends the conditional resident’s green card for an additional period of time (usually one year). USCIS will also issue a “Request for Evidence” at a later date that asks for the final divorce decree when available.

Waiver without a Divorce – Extreme Hardship

It is possible to file an I-751 waiver even if the spouse refuses to a divorce or the couple is separated and a legal divorce was never filed with the court. If the conditional resident can demonstrate “extreme hardship,” he/she may be eligible to file the I-751 on this ground. Establishing an extreme hardship case can be very difficult. For this reason, the petitioner should always obtain the assistance of an experienced immigration attorney.

Extreme Hardship Defined

An extreme hardship can be difficult to define. USCIS has made clear that the hardship must have arisen after the petitioner received conditional residence. Beyond that, there are not specifically defined requirements for an extreme hardship. An attorney can help you with this process. USCIS may consider the following factors in an extreme hardship case:

• Age of the conditional resident
• If the conditional resident has children, the age, number, and immigration status of the children and their ability to speak the language or adjust to life in another country
• Health of the conditional resident and/or health of the conditional resident’s child, spouse, or parent
• The conditional resident’s ability to earn income and find a job in the country to which he/she would return
• Conditional resident’s length of residence in the U.S.
• Conditional resident’s family ties in the U.S.
• Financial impact of the conditional resident’s departure
• Impact of a disruption of educational opportunities
• Psychological impact of the conditional resident’s removal
• Current political and economic conditions in the country that the person would return
• Family and other ties in the conditional resident’s country
• Conditional resident’s contributions to and ties to the U.S.
• Conditional resident’s immigration history

After filing Form I-751 with a waiver, the petitioner should expect to attend an interview at the local district office where the conditional resident lives. Petitions with waivers are decided on a case-by-case status. So every detail counts.

This is not a complete description of evidence that must be submitted with Form I-751 . Filing an I-751 waiver after divorce or other events can be a complex process that requires expert knowledge of the law. For these reasons, individuals should consult with an experienced immigration attorney before filing the I-751 waiver after divorce. Refer to USCIS or utilize the services of CitizenPath for a thorough list of items which must be submitted with the petition.

About CitizenPath

CitizenPath provides simple, affordable, step-by-step guidance through USCIS immigration applications. Individuals, attorneys and non-profits use the service on desktop or mobile device to prepare immigration forms accurately, avoiding costly delays. CitizenPath allows users to try the service for free and provides a 100% money-back guarantee that USCIS will approve the application or petition. We provide support for the Petition to Remove Conditions on Residence (Form I-751) , Green Card Renewal (Form I-90) , the Citizenship Application (Form N-400) , and several other USCIS forms .

Note to Reader: This post was originally published on June 5, 2018, and has been modified with improvements.

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I-751 Waiver

I-751 waiver after divorce:.

The conditional resident normally files jointly with the spouse. Once approved, U.S. Citizenship and Immigration Services (USCIS) grants the conditional resident status as a lawful permanent resident and provides a 10-year green card . But what if the conditional resident gets a divorce or annulment before the two-year period ends? Or what happens if the spouse is abusive and refuses to file the joint petition? The I-751 waiver after divorce provides a solution to this difficult situation.

USCIS will allow a conditional resident to remove conditions on residence after divorce or other events that make it impossible to file a joint petition with the spouse through whom he or she gained conditional residence. In these cases, the conditional resident must file the petition with a request that the joint filing requirement be waived, commonly known as a waiver. The conditional resident can still become a lawful permanent resident, but it’s not a simple matter. The stakes are high. USCIS will more closely scrutinize the I-751 petition. And an unsuccessful petition may result in removal proceedings for the conditional resident.

I-751 Waiver Also Requires a Good Faith Marriage

If a marriage has been terminated due to death or divorce, and even if the spouse has abused the conditional resident, there’s still an important requirement to prove it started as a good faith marriage. The I-751 waiver after divorce is not a free pass; you’ll need to prove your intentions were honest when you entered the marriage.

USCIS wants to verify that you entered the marriage for love, not for a green card. A good faith marriage is one that is built on love and starts with the genuine desire to build a life together. A fraud or sham marriage is when an individual enters into the marriage for the purpose of going around immigration laws to falsely acquire immigration benefits.

USCIS can’t know what happens inside the privacy of a couple’s home. Therefore, USCIS needs the petitioner to prove his or her own good faith marriage by presenting evidence. Anyone attempting to file to remove the conditions on residence with a waiver after divorce needs to understand that there is still an important requirement to prove a good faith marriage. Wedding records, birth certificates of children, and joint financial records are examples of documents that can be used to prove a good faith marriage.

Waiver Creates Additional Burdens of Proof

By not filing jointly with the spouse through whom conditional residence was gained, a petition automatically raises red flags. There is a burden of proof for the single petitioner to prove that he or she originally entered the marriage in good faith and the marriage cannot continue through no fault of the petitioner.

Waiver without a Divorce – Extreme Hardship

At Prizant Law, our client often ask will it be possible to file an I-751 waiver even if the spouse refuses to a divorce or the couple is separated and a legal divorce was never filed with the court? If the conditional resident can demonstrate “extreme hardship,” he/she may be eligible to file the I-751 on this ground. Establishing an extreme hardship case can be very difficult. For this reason, the petitioner should always obtain the assistance of an experienced immigration attorney.

Extreme Hardship can be difficult to define. USCIS has made clear that the hardship must have arisen after the petitioner received conditional residence. Beyond that, there are not specifically defined requirements for an extreme hardship. An attorney can help you with this process. USCIS may consider the following factors in an extreme hardship case:

• Age of the conditional resident
• If the conditional resident has children, the age, number, and immigration status of the children and their ability to speak the language or adjust to life in another country
• Health of the conditional resident and/or health of the conditional resident’s child, spouse, or parent
• The conditional resident’s ability to earn income and find a job in the country to which he/she would return
• Conditional resident’s length of residence in the U.S.
• Conditional resident’s family ties in the U.S.
• Financial impact of the conditional resident’s departure
• Impact of a disruption of educational opportunities
• Psychological impact of the conditional resident’s removal
• Current political and economic conditions in the country that the person would return
• Family and other ties in the conditional resident’s country
• Conditional resident’s contributions to and ties to the U.S.
• Conditional resident’s immigration history

Contact our experienced immigration lawyers in New York City today at 718-407-0871 or online at https://www.prizant-law.com/ for creative solutions to our client’s complex immigration problems

Contributed by Svetlana Prizant, an Award Winning Queens Immigration Lawyer Call Or Visit Prizant Law today at: Prizant Law 118-21 Queens Blvd Suite 507 Forest Hills, NY 11375 (718) 407 0871 https://www.prizant-law.com/

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I-751 Waiver Lawyer NYC

I-751 waiver lawyer nyc | feiner & lavy law firm.

If you are a conditional permanent resident who received status through your marriage, you may be eligible to apply to remove the conditions on your permanent status. You can apply to remove the conditions on your permanent status by filing Form I-751, Petition to Remove Conditions on Residence. An I-751 Waiver Lawyer NYC can help you file this petition and assist you with any subsequent legal needs related to the petition.

What is Conditional Permanent Resident Status?

Conditional permanent resident status may be given to the immigrant pursuing a green card based on a recent marriage. This conditional status is given so that U.S. Citizenship and Immigration Services (USCIS) has a second chance to confirm that the marriage is valid.

A conditional permanent resident will receive a green card that is valid for a period of two years. Form I-751, Petition to Remove Conditions on Residence , must be filed within the 90-day period prior to the expiration of your conditional green card. Your I-751 Waiver Lawyer NYC can help you with this process and ensure that you meet all of the necessary deadlines.

Conditional residency is essentially a two-year testing period. Prior to the conditional residency status expiration date, the immigrant will need to apply for permanent status. At this point in the process, you may need to demonstrate that the marriage is ongoing, and further proof may be required at this time to confirm that you and your spouse are in a valid marriage and are truly establishing a life together.

If you have conditional permanent resident status, it is only valid for a period of two years. In some cases, you can renew this status at that time. However, if you received your conditional permanent resident status due to a marriage to a United States citizen or a lawful permanent resident or you were admitted to the U.S. as a fiancé (or fiancée) of a U.S. citizen and then married the U.S. citizen, you cannot renew your conditional permanent resident status.

In these scenarios, you will need to file a petition with your spouse to remove the conditions on your permanent resident status. If you fail to do so, you risk losing your lawful status in the United States. If the petition is not filed within the proper timeframe, your status may be automatically terminated, and you may receive a Notice to Appear.

What Rights Does a Conditional Resident Have in the United States?

A conditional resident has most of the same rights as a permanent resident has. He or she has the ability to accept employment without applying for a work permit, can travel in and out of the United States, and can begin working toward United States citizenship.

As long as the immigrant is ultimately approved for permanent residence, time in the U.S. as a conditional resident will be considered permanent residence for purposes of applying for naturalization. An I-751 Waiver Lawyer NYC can help you understand what conditional residency means and how you can move forward with obtaining permanent residency.

How Do I Apply to Remove Conditions on Residence?

If you are in the United States as a conditional resident due to marriage, you should have an understanding of the process of applying to remove conditions on residence if your ultimate goal is to obtain a green card and become a permanent resident.

To remove the conditions on residence, both the immigrant and the United States citizen spouse will need to submit a joint petition Form I-751 to USCIS. It is crucial that this form is submitted within the 90-day period prior to the ending of the immigrant’s conditional residence. If it is filed late, you will risk an automatic termination of status

In cases where your marriage is the reason for conditional residency, you will also need to submit documents that show that you and your spouse are in an ongoing, real marriage. Some documents that may be used for this purpose include copies of joint leases, house titles, bank accounts, and memberships. If you have any children, their birth certificates are powerful supporting evidence of the validity of the marriage.

What is a Form I-751 Waiver?

If your marriage has ended due to divorce or death, the immigrant may be able to apply for a waiver of the joint petition requirement under some circumstances. In these cases, the immigrant would submit Form I-751 solo.

When you submit the form, you will still need to provide proof that your marriage was real. Additionally, you will also need to show documentary evidence of your claimed basis for a waiver. In these situations, it is particularly important to include documentation of all aspects of the matter, including proof of the marriage and the reason for the waiver. An I-751 Waiver Lawyer NYC can help you learn more about whether you may be eligible for a waiver.

What Are the Next Steps After I Submit Form I-751?

You will receive a notice once USCIS has reviewed your Form I-751. Keep in mind that USCIS may decide to interview you and your spouse to take a closer look at your marriage. If USCIS does conclude that your marriage is not real, then the immigrant spouse could lose status completely and be required to leave the United States.

Do I Need to Hire an I-751 Waiver Lawyer NYC?

It can be very helpful for your case if you decide to hire an I-751 Waiver Lawyer in NYC. This can be particularly important if you need to apply for a waiver to file an I-751 on your own without your spouse due to death or divorce. An I-751 Waiver Lawyer NYC will have the experience necessary to help you complete all steps of the process with the required documentation included.

The immigration lawyers at Feiner and Lavy, P.C. have many years of experience handling all different types of immigration law matters. Our attorneys have successfully helped many clients obtain I-751 waivers and achieve permanent residency. Contact our office today to set up a consultation with one of our lawyers to learn more about how to get started with this process.

Frequently asked questions:

**This is general information and is NOT intended to provide legal advice.

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