Deciding to end a marriage is never ideal. It’s not how you saw things ending; worse, your spouse’s presence in the country hangs in the balance. 

What do you do? 

If you are a US citizen or permanent resident who filed an immigrant visa petition for your spouse, and he or she obtained conditional residence based on your marriage, you are no longer required to assist your former spouse in continued immigration petitions. 

Filing Form I-751, Petition to Remove Conditions on Residence with United States Citizenship and Immigration Services (USCIS) before the conditional residence expires, is necessary to maintain resident status in the United States. Failure to file a complete petition before the expiration date of conditional residence may result in removal proceedings. 

This article will explain how to file this form and provide more information about divorce and its impact on immigration.

Why Divorce Affects Conditional Resident Status

Under U.S. immigration law, to move from conditional resident to permanent resident status, couples must demonstrate that the marriage was entered into in good faith and lasted for at least two years following the approval for conditional residence. 

Couples who divorce before the two-year period after obtaining conditional residence, can raise red flags to immigration services, complicating the application for permanent residence. Conditional residents may face allegations of a bad faith marriage or immigration fraud. These are serious allegations with hefty penalties, including becoming ineligible for lawful immigration to the US in the future. So it is important to have your case evaluated and prepared by an attorney to make sure you do not face these complications. However, USCIS provides a waiver of the joint filing requirement due to divorce for Form I-751 Petition to Remove Conditions On Residence, which is the required petition to change from conditional resident to permanent resident status based on marriage to a U.S. citizen or resident. 

Filing Form I-751

You must file Form I-751, Petition to Remove Conditions on Residence, with USCIS 90 days before the two year anniversary of the conditional residence status to obtain permanent resident status. 

Along with it, you must include the following required documents:

• • A request for waiver of the joint petition requirement

• • Your divorce decree or settlement

• • Evidence of a good faith marriage

• • Copies of the front and back of your Permanent Resident Card

You must show that your marriage was legitimate in order to be eligible for permanent resident status based on your former marriage.. Examples of a good faith marriage could include evidence of marriage counseling, shared residence, and joint bank accounts. 

Once you’ve gathered the correct documents, you can mail them to USCIS. The address for mailing your petition will depend on where you live. Check out the Direct Filing Address for Form I-751 page on the USCIS website. 

The filing fee is $595.

What Happens if You Miss the Expiration Date?

Failure to file a complete petition before the expiration date of conditional residence may result in removal proceedings. You will be placed “out of status” and begin accruing unlawful presence, which could result in being barred from the United States.

You may still be able to file your petition late by including an explanation with your documentation. 

I Submitted My I-751 and Waiver Request. What Happens Now?

Once USCIS receives the Form I-751 with the waiver request and supporting evidence, they will review the petition. You will likely be scheduled for an interview before USCIS to further review your petition and evidence. After your interview you will receive an approval or denial notice in the mail.

If approved, you will receive your permanent resident card in the mail. If denied, you have 30 days to appeal their decision by filing an administrative appeal with USCIS. 

 Will My Divorce Affect My Application for Citizenship?

A divorce will extend the time it takes for you to become eligible for naturalization. Permanent residents who are married to US citizens can apply for naturalization three years after becoming a resident, including the two-year period of conditional residence.. After you are divorced, you must wait five years before you are eligible to apply.

A divorce is a life-changing event. And when it can affect your permanent resident status in the country, things can become much more complicated. But the first step is to contact an experienced immigration attorney to help you navigate this process and make sure you can keep your resident status and eventually become a U.S. citizen.

For help, contact a knowledgeable divorce attorney experienced in immigration issues related to divorce.

Book your consultation TODAY with TRU LAW USA to help you with your immigration process.