Divorce After Filing I-751 Jointly

Dealing with the complexities of immigration law is challenging enough — adding divorce to the mix can feel overwhelming.

If you're going through a divorce after filing Form I-751 jointly with your spouse, know that you're not alone, and there is a path forward. In this article, we'll explore everything you need to know to protect your conditional green card and lawful permanent resident status while changing your marital status.

Form I-751 and Conditional Resident Status

Filing Form I-751, Petition to Remove Conditions on Residence, is a crucial step for conditional residents to transition to lawful permanent residents. Typically, it’s filed jointly with your spouse within the 90-day period before your conditional green card expires. But what happens when you enter into divorce proceedings after filing jointly?

Your conditional resident status won’t immediately disappear, luckily, but the joint filing requirement adds a unique wrinkle. The key to dealing with it is to understand the options you have available and act quickly to avoid removal proceedings.

Conditional Green Cards and Joint Filing Requirements

Conditional green cards are issued to married spouses who have been together for less than two years when their permanent residence is granted. To remove these conditions, you and your spouse must prove that you entered into the marriage in good faith, not for immigration purposes.

Divorce can raise red flags for U.S. Citizenship and Immigration Services (USCIS) about the authenticity of your marriage. However, it doesn’t mean automatic denial, especially if you can provide evidence of a bona fide marriage.

The Impact of Divorce on Your I-751 Petition

A finalized divorce changes your filing approach. If you initially submitted a joint petition and your marital status shifts to "divorced", you can pivot to filing Form I-751 with a waiver request. USCIS officials understand that marriages sometimes end in divorce despite being entered into in good faith.

Options After Filing Jointly When Divorce Occurs

If your divorce proceedings start while your I-751 is pending, you must notify USCIS about your changed circumstances. This involves submitting documentation like your final divorce decree and a request to amend your petition to include a waiver based on the good-faith marriage requirement.

Proving a Bona Fide Marriage Post-Divorce

USCIS takes marriage fraud seriously, so you’ll need to provide compelling evidence to show that your marriage was genuine. This could include:

• Joint financial records (e.g. tax returns, bank statements)
• Birth certificates of children born during the marriage
• Photos of you and your spouse together
• Communication logs
• Affidavits from family and friends

The goal is to demonstrate that your marriage wasn’t merely an attempt to evade immigration laws.

Filing Form I-751 with a Divorce Waiver

Once your divorce has been finalized, you can file separately using a waiver of the joint filing requirement. USCIS allows conditional residents to apply for a waiver based on the following conditions:

• A marriage that was entered into in good faith but ended in divorce.
• The potential for extreme hardship upon deportation.
• Being the victim of extreme cruelty or abuse by your spouse.

Whatever grounds you opt to file on, be prepared to provide meaningful evidence to support your claim.

What to Do If Your Divorce Isn’t Finalized Yet

Pending divorce cases complicate things, but they’re manageable. USCIS typically requires a final divorce decree to approve a waiver. While waiting, you’ll have the opportunity to submit evidence that divorce proceedings are underway and explain your situation.

Working with an experienced immigration attorney can help ensure that USCIS officials understand the circumstances surrounding your case.

Avoiding Immigration Fraud Allegations

Divorce often triggers heightened scrutiny from immigration services. If USCIS suspects immigration fraud, it may launch an investigation or even initiate removal proceedings. This makes it critical to provide thorough evidence of a good-faith marriage and avoid gaps in your petition.

Protecting Your Immigration Status During Divorce

While divorce can delay the process of removing conditions, it doesn’t automatically disqualify you from becoming a lawful permanent resident. Here’s what you need to know about how to steer clear of common pitfalls and protect your immigration status as you terminate your marriage.

Handling a Spouse Who Refuses to Cooperate

Sometimes, the petitioning spouse refuses to provide evidence or sign forms due to personal conflicts. In such cases, filing Form I-751 with a waiver becomes even more important. Document your efforts to obtain their cooperation and gather alternate evidence to prove the legitimacy of your marriage.

How USCIS Evaluates Good-Faith Marriages

Understanding that every case is unique, USCIS evaluates good-faith marriages on a case-by-case basis. Showing shared responsibilities, financial interdependence, and emotional connection can greatly strengthen your case. Extenuating circumstances, such as extreme hardship or abuse, can also influence the agency’s decision.

USCIS Denials and Removal Proceedings

If USCIS denies your Form I-751 or suspects fraud, they may refer your case to an immigration court. At this stage, an immigration judge will review the available evidence and decide your eligibility for permanent residence. Working with a skilled immigration attorney at this stage is vital for preparing a strong defense.