A conditional permanent resident (whose conditional residence was obtained based on marriage to a U.S. citizen) must file a Petition to Remove the Conditions of Residence (Form I-751) during the 90-day period prior to the expiration of the conditional resident status. The Form I-751 must be jointly filed (filed by both the conditional resident and the petitioning U.S. citizen spouse) unless the conditional resident is eligible for a waiver which permits her or him to file the Form I-751 without the petitioning U.S. citizen spouse. The grounds for an I-751 Waiver are the following: the petitioning U.S. citizen spouse is deceased; the marriage was entered into in good faith, but terminated through divorce or annulment; the conditional resident entered into a good faith marriage and was battered or subjected to extreme cruelty by the U.S. citizen petitioning spouse; and the termination of conditional resident status and removal from the United States would result in extreme hardship.
Good faith marriages can deteriorate. When such good faith marriages deteriorate, unpredictable outcomes can occur, such as divorce proceedings commencing after a Jointly Filed I-751 petition is filed. USCIS, in a memorandum issued in 2009 (titled "I-751 Filed Prior to Termination of Marriage") provides guidance on the process for dealing with such cases where divorce proceedings are commenced while the Jointly Filed Form I-751 is still pending. In such cases, USCIS – upon becoming aware of the commencement of divorce proceedings – should provide the conditional resident the opportunity to amend the Jointly Filed I-751 to an I-751 waiver based on a marriage which was entered into in good faith, but terminated through divorce. USCIS, in such a circumstance, should issue Request for Evidence to the conditional resident providing 87-days for the submission of the Divorce Judgment entered by the Court. If the conditional resident does not submit the Divorce Judgment in compliance with the 87-day deadline, then USCIS may issue a Notice of Termination of Conditional Resident Status and issue a Notice to Appear for the commencement of removal proceedings before the Immigration Court. The conditional resident may still explore renewing the Form I-751 (along with any other potential relief) before the Immigration Judge. Due diligence and proper counsel for the submission of (1) bonafides of the marriage which establish the good faith nature of the marriage and (2) evidence of the termination of the marriage (i.e., the Divorce Judgment) in a timely fashion, should result in the conditional resident having the Form I-751 approved by USCIS.
Daniel B. Sibirskyis Florida Bar Board Certified as an expert in Immigration & Nationality Law.
He is listed in The Best Lawyers in America®.
Daniel B. Sibirsky
Tel. (305) 381-9797