When an immigrant obtains permanent resident status as a result of a spousal petition, and the couple has been married for less than two years, the beneficiary will receive a conditional green card. Similarly, all successful K1 fiancé adjustments will result in the foreign national spouse obtaining a conditional green card. The conditional green card is valid for two years, after which the conditional green card holder files an I-751 petition to remove conditions to transition to unconditional permanent resident status. The purpose of the petition is to give USCIS a second chance to check for immigration fraud and be certain that the couple is in a bona fide marriage. When the couple is still married, they filed the I-751 petition jointly and provide proof to immigration that they are in a real marriage.
Not all marriages last forever. In some cases, the couple gets separated or divorced prior to the two-year anniversary of the beneficiary obtaining the conditional green card. When this happens, you can still petition to have the conditions removed and transition to a permanent, or unconditional, green card. The immigrant spouse will file an I-751 petition along with a request for a waiver of the joint filing requirement. This allows the green card holder to waiver the normal requirement that the US citizen jointly sign and file the I-751 petition.
A waiver of the joint filing requirement does not require that the US citizen spouse was physically or even emotionally abusive. The waiver can be obtained simply because the couple had irreconcilable differences that resulted in divorce based upon a period of separation.
However, it is important to note that in order to obtain a waiver for your I-751 petition, you must be divorced. Being separated is not sufficient to obtain the waiver. This can pose a problem because the required period of separation before a couple can obtain a legal divorce varies between states. In Virginia, a couple might be required to be separated for up to a year before a divorce can even be filed with a state court.
This poses a problem because you must file the I-751 petition within the 90 day period immediately before your conditional green card will expire. If you are separated within or shortly before that deadline for filing, you will not be divorced by the time you must file the petition. In that case, you should file the I-751 form requesting a waiver, and explain that you are separated and anticipate being divorced. You should provide an estimate of the time by which you expect to have a final decree of divorce that you can provide to USCIS.
A common misconception is that you must prove that you are in a bona fide relationship at the time that you file your I-751 petition. In fact, USCIS is investigating your case for immigration fraud from the time of the initial filing. To that effect, you are required to prove that your relationship, as a whole, was real. You must produce evidence to show that your relationship was not a pretense for obtaining a green card.
Regardless of whether you are separated, divorced, or still happily married, you will be presenting similar evidence to USCIS in your I-751 petition. You will include with your filing supporting documents showing that from the time you met, up until the time you become separated or divorced, you were in a real relationship. The evidence you submit along with your I-751 petition will be similar to what you produced to prove to USCIS that you were in a bona fide relationship in your initial application for permanent resident status.
To that effect, you should provide proof of financial co dependence from throughout the relationship. The most convincing evidence that you were in a bona fide marriage prior to your separation or divorce is proof that you trusted each other with your financial assets and debts. It is also helpful to include letters from friends and family attesting to the bona fides of your marriage. Proof of joint insurance, utility bills, life insurance, and health insurance is also helpful. You should produce this evidence for the entire period of your marriage, even from before you obtained your conditional green card.
Another common concern is that a separation or divorce while you have conditional permanent resident status will cause you to lose your green card. This is a misconception. A separation or divorce from the US citizen petitioner spouse will not cause you to lose your green card. However, you will still need to go through the process of removing the conditions on your permanent residence.
USCIS will scrutinize your removal of conditions petition more closely when you are filing after a separation or divorce from the US citizen petitioner. They will be more likely to suspect you of marriage fraud, and you should be prepared to meticulously document the bona fides of your marriage. If you are lacking financial evidence, you should make up for it with other more creative supporting documentation.
In addition, you should submit documentation to explain what led to the dissolution of your marriage. Both you and the US citizen petitioner can submit a statement to explain why you ended your relationship. Letters from friends or family who were familiar with your marriage and ultimately your divorce can also submit a statement explaining what led to the dissolution of your marriage. You will typically not be interviewed by an immigration officer in the course of an I-751 removal of conditions petition, so anything you want the immigration officer to know must be submitted in writing. Supporting documentation in the form of letters and statements are the best way to present that evidence.
Within a few weeks of filing your I-751 petition, you will receive a notice to appear for a biometrics appointment. It is vitally important that you complete your biometrics before traveling outside of the country while your I-751 petition is in process. You will also receive a receipt from USCIS stating that the agency has received your petition. You will need to possess both your green card and this receipt from immigration if you travel internationally. You will not receive a decision, and ultimately a new, valid green card, until USCIS has finished processing your case, which can take anywhere from six months to a year.
If you were not divorced when you filed the petition, you should receive a request for evidence from USCIS requesting a certified copy of your divorce decree. You should work to obtain the decree of divorce as quickly as possible so that you are ready to supplement your filing when you do receive that notice from USCIS.