I-751, Waiver of Joint Filing Due to Divorce, Termination, or Annulment
By
Dev Banad Viswanath, Esq.
If an individual applied for a green card based on their marriage to a U.S. citizen and they were married for less than two years when they were granted lawful residence, they will receive a “conditional” green card that is only valid for two years. Before the two-year mark is up the individual must file a I-751 form to remove the conditions on their green card. If the conditions on their green card are not removed, then the green card and their status and right to stay in the U.S. will terminate. This is a requirement that cannot be waived.
Normally to remove the conditions on a green card, the green card holder and their spouse would jointly file Form I-751, Petition to Remove the Conditions of Residence, within 90 days of the expiration of the green card. There are a few circumstances where an individual may file Form I-751 without their spouse; this is when the individual applies for a waiver of the joint filing requirement. There are three circumstances where a waiver of the joint filing requirement may be granted:
- The marriage ended in divorce, annulment, or death of the U.S. citizen spouse,
- The individual will suffer extreme hardship if they return to their home country, or
- The individual was abused or treated cruelly by their U.S. citizen spouse.
This article will focus on waiver of the joint filing requirement due to divorce, annulment, or death.
An individual may request a waiver of the joint filing requirement for Form-751 only after their divorce/annulment is final or if the U.S. citizen spouse died. If the couple are just separated or in divorce/annulment proceedings, they cannot file under this category. The individual must submit evidence to establish that their marriage was a bona fide real marriage and not just a business transaction to get a green card. The individual must also provide evidence that the marriage is legally terminated. If the U.S. citizen spouse died than the individual must provide a death certificate. Evidence to establish a marriage was entered into in good faith would include wedding records, birth certificates of children, joint financial records, pictures, among other items.
The following is what must be submitted to USCIS along with Form I-751:
- Copy of the permanent resident card, front and back;
- Evidence that the marriage was entered into in good faith and that the marriage was genuine; and
- Evidence supporting the circumstances that ended the marriage.
After the whole I-751 packet is filed, the conditional permanent resident will receive a receipt notice which also extends their status. Currently, they will get an extension of 18 months based on USCIS processing times. The conditional permanent resident is allowed to continue to live and work in the U.S. while their case is being processed, and travel the same as before. This period is also counted towards time for US Citizenship eligibility.
If USCIS needs more evidence to prove the marriage was entered into in good faith they will send a request for evidence (RFE), which must be timely answered. Or an interview may be scheduled, which is almost always the case in waiver of joint filing I-751 petitions. Once USCIS reviews the whole I-751 packet it will determine if the conditional permanent resident qualifies for a waiver of joint filing and send a letter to the applicant with their decision.
This process can be confusing and it is definitely not quick, but with the right preparation and organization the filing of a I-751 Application with a request for Waiver of can be relatively straightforward.