Filing I-751 before divorce finalizes

If you obtained your permanent residence status (green card) from marrying to a U.S. citizen, and if at the time the marriage is less than 2 years, your first receive a “conditional” green card which is valid for only two years.  In order to receive a permanent green card, you will need to file a petition by using form I-751, Petition to Remove the Conditions of Residence.  This form is usually signed by both you and by your U.S. citizen spouse, and file with U.S. Citizenship and Immigration Services (USCIS) within the 90 days before the two-year anniversary of the date your conditional green card was issued.

But if you divorce (or your marriage is annulled) before the two years have passed and you still want to receive a permanent green card, you will  need to submit Form I-751, but will check to request a “waiver” of the joint filing requirement.  If the divorce is finalized at the time, you can file the form I-751 by yourself.  But if the divorce is still pending at the time, the situation is a little more complicated.

For this situation, the USCIS in its Neufeld Memo provides the follows:

If a waiver is filed post separation but prior to final divorce:

  • Petitioners will receive an Requset for Evidence (RFE) requiring that the divorce be finalized in 87 days.
  • If the divorce is finalized before the response to the RFE is due, petitioners may submit the divorce decree in response to the RFE and the case will be processed as a waiver case.
  • If petitioners are not divorced in time to respond to the RFE, they will receive a notice revoking CPR status, and an Notice to Appear will be issued.

If a joint petition is filed post separation but prior to final divorce:

  • Petitioners will receive an RFE asking for a divorce decree, and when it is submitted, petitioners must then request that their case be converted to a waiver case. This will avoid the need to refile the case as a waiver. When this occurs, the case may or may not, depending on the strength of its merits, be referred for interview.
  • If petitioners are not yet divorced when the RFE response is due, then the case will be evaluated on the strength of the bona fides of the marriage. USCIS will then approve, deny, or interview.
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