Divorce and I-751: How to Ensure an I-751 Approval

A conditional resident is someone who obtained their green card (permanent residency) through marriage. Because the marriage was less than two years at the time of issuance of your green card, USCIS issued a conditional green card. As a conditional resident, you must go through a process known as “lifting of conditions” and file Form I-751 within three months of the expiration of your green card. We have learned that this process can become problematic for individuals who are in a rocky marriage, or, who believe their marriage may end in divorce. We have discussed your options below.

Joint Filing

An I-751 must be filed jointly with the US citizen or resident spouse. If your US citizen or lawful permanent resident spouse is willing to sign the I-751, then you do not need to request a waiver. Sometimes, however, while your I-751 is pending, people file for divorce. In these situations, it may be advisable to convert your pending I-751 into a waiver application.

I-751 Waiver Request

There are three scenarios where you can request a waiver. These are

The marriage was entered into in good faith, but ended in divorce;

You entered the marriage in good faith, and, during the marriage, you were battered, or were the subject of extreme cruelty;

The termination of your status and removal from the United States would result in an extreme hardship

You can request a waiver for each of the items listed above, or all of them. However, as a practical consideration, it may be best to select the one which you have the most amount of evidence. For example, if you do not have any evidence showing that your removal from the United States would result in an extreme hardship, but have a lot of evidence to show the marriage was entered in good faith, then it would make most sense to proceed with the waiver ground that has the highest chance of success.

If the marriage was entered into in good faith, but ended in divorce

If you are currently divorced from your spouse, or have initiated a divorce, but have evidence to show the marriage was entered into in good faith, then you should proceed on this waiver ground. If you are currently pending a divorce, meaning, the divorce is not finalized yet, you can also select this option but you should make sure your divorce is finalized within six months.

A “good faith” marriage means the marriage was legitimate and not fraudulent. To prove a good faith marriage, you should include as much evidence as possible showing a shared marital life together. Some evidence includes, but is not limited to:

Joint bank accounts: Show shared financial responsibilities.
Joint credit cards: Demonstrate financial interdependence.
Joint property ownership: Prove a shared commitment to the relationship.
Joint leases or mortgages: Indicate a shared living arrangement.
Joint insurance policies: Demonstrate mutual financial protection.
Love letters: Express feelings and commitment.
Emails and text messages: Show regular communication and intimacy.
Social media posts: Document shared activities and experiences.
Gifts and cards: Indicate thoughtfulness and affection.
Travel together: Demonstrate shared experiences and memories.
Family gatherings: Show involvement in each other's lives.
Hobbies and interests: Indicate shared passions and activities.
Photos and videos: Capture moments together.
Affidavits from friends and family: Provide firsthand accounts of the relationship.
Court records: If relevant, can show joint actions or legal commitments.

If your divorce has been initiated, it is important to include a copy of your divorce filing with USCIS. If your divorce has been finalized, you must include a copy of your divorce decree.

If your I-751 was previously filed jointly, and you later became divorced while your I-751 was pending, send a copy of your divorce decree to USCIS and request that the application be converted to a divorce waiver. Because these are complicated legal processes with important and life altering consequences, it is important to work with an immigration attorney during this process.

If you were battered or subject to extreme cruelty

The Violence Against Women Act (VAWA) provisions of an I-751 petition are designed to protect immigrants who have been abused by their U.S. citizen or permanent resident spouse. These provisions allow individuals who have been abused to file for a waiver of the joint filing requirement for the I-751 petition, which typically requires both spouses to jointly file to remove the conditions on their green card.

In addition to the evidence required for the “good faith” marriage discussed above, you will need to provide additional evidence of the abuse. Evidence of abuse may include:

Medical Evidence

Physical examination records: Documenting injuries or physical signs of abuse.
Medical bills: Related to treatment for injuries or abuse-related health conditions.
Prescriptions: For medications prescribed to treat trauma or mental health conditions.

Law Enforcement Records

Police reports: Detailing incidents of abuse or threats.
Protective orders: Issued to protect the victim from further abuse.
Court orders: Related to domestic violence cases.

Psychological Evidence

Therapy records: Documenting sessions discussing abuse-related trauma or mental health issues.
Expert testimony: From mental health professionals who can assess the impact of the abuse.

Personal Documentation

Journals or diaries: Recording incidents of abuse, emotions, or thoughts.
Letters or emails: From the abuser or others who witnessed the abuse.
Photographs or videos: Documenting injuries or abusive behavior.
Social media posts: Showing changes in behavior or emotional state.

Witness Statements

Affidavits from friends or family: Corroborating the victim's claims of abuse.
Statements from neighbors or coworkers: Who may have witnessed signs of abuse.

Other Evidence

Documentation of financial control: Such as credit card statements or bank records.
Records of isolation: Like restricted access to phone or transportation.
Evidence of threats or intimidation: Including written or verbal threats.

It is not uncommon for individuals in abusive relationships to lack evidence of their abuse. Therefore, if you are in an abusive marriage and believe you qualify under the VAWA provisions, it is important to discuss your case with an immigration lawyer.

It is important to note that by electing to pursue the VAWA provisions of the I-751 waiver for abuse or extreme cruelty, you are adding an additional element to prove in your case: abuse. You are also opening yourself up to being asked questions about the abuse during a USCIS I-751 interview. Therefore, if you are unwilling to discuss the abuse, you should discuss whether it is prudent to pursue this waiver with your immigration attorney.

Expedited Naturalization for VAWA Applicants

If your I-751 was approved based on abuse or extreme cruelty, you are eligible to obtain citizenship three years after you obtained your initial green card, rather than waiting five years.

Specifically, the INA notes that eligible survivors of domestic violence who obtained their Green Card as the spouse or child of a U.S. citizen who subjected them to battery or extreme cruelty may apply for naturalization after residing in the US for three years.

Eligible survivors of domestic violence include:

Those with an approved I-360 VAWA self-petition;
Those with an approved I-751 waiver of conditional residence based on battery or extreme cruelty; or
Those with a grant of Cancellation of Removal and subsequent adjustment of status for battered spouses and children under INA § 240A(b)(2).

If the termination of your conditional status would result in an extreme hardship

A conditional resident may also file a waiver if he or she can show that extreme hardship will result if he is deported. USCIS will consider only hardships that arose during the conditional residence period. This means that USCIS will only look at the two years during your conditional residency and the hardships that arose during that period in time, not any hardships that occurred earlier. See, generally, INA § 216(c)(4)(A); INA § 216(c)(4)(D); see also, Matter of Monroe, 26 I&N Dec. 428 (BIA 2014); Singh v. Mukasey, 536 F.3d149 (2d Cir. 2008); Hammad v. Holder, 603 F.3d 536, 545 (9th Cir. 2010).

Unlike the other two grounds for a waiver, USCIS does not require that you prove the marriage was entered into in good faith. However, if your marriage was entered into in good faith, you should provide any of the evidence listed under the “good faith” section above.

Evidence of hardship can include:

Personal Hardship

Loss of employment: If you have a stable job that would be difficult to find in your home country.
Loss of income: Demonstrating a significant drop in income that would impact your ability to support yourself and your family.
Loss of healthcare: If you rely on healthcare benefits that would be unavailable in your home country.
Loss of education: If you or your children are enrolled in school and would face significant challenges in continuing their education in your home country.
Separation from family: If you have close family members in the U.S. who would suffer extreme hardship from your departure.

Medical Hardship

Serious medical condition: If you or a family member has a serious medical condition that cannot be adequately treated in your home country.
Dependency on others: If you or a family member rely on others for care and support that would not be available in your home country.
Risk of persecution: If you or a family member face a risk of persecution based on their medical condition.

Humanitarian Hardship

Persecution or torture: If you or a family member face a risk of persecution or torture in your home country.
Lack of basic necessities: If you would be unable to access basic necessities like food, water, or shelter in your home country.
Violation of human rights: If you or a family member would face a violation of human rights in your home country.

I-751 Interview

An I-751 interview begins with a review of the I-751 to make any necessary updates or corrections. If you filed the I-751 and are still married with your spouse, the interview will focus on the bona fides of the marriage and both of you should attend. This means the officer will ask you and your spouse regarding how you met, when you were married, where you lived together, discuss your shared finances together and details about your daily lives. You are expected to be intimately familiar with the details of your spouse’s lives, including relevant information about their other family members, such as his or her siblings or parents. If USCIS doubts the marriage, they may separate you from your spouse and compare your answers to make sure they match. That is why is advisable to have an attorney present at your interview.

If you filed an I-751 but are now divorced, a USCIS officer will still interview you to learn more about the marriage. The officer may ask how you met, how long the courtship lasted, where you both lived, and then begin to ask about the details of the marriage and why it resulted in divorce. The more details you provide in your answer, rather than vague or generic responses, lends credibility to your testimony. If you filed a waiver based on extreme hardship, the officer will also ask about the hardships you faced. The officer has the right to issue a request for evidence to ask for any additional evidence that supports your claim.

If your divorce is not final

The USCIS Neufeld memo on I-751 adjudication for those pending divorce notes that if a USCIS officer encounters a waiver request on the basis of termination of marriage, but the resident is currently only separated or in pending divorce or annulment proceedings, a Request for Evidence should be issued requesting a divorce decree.

Importantly, the memo notes that USCIS may not deny a petition solely because the spouses are separated or have initiated divorce or annulment proceedings. This means that if your I-751 was signed by your spouse, then even a pending divorce or living separately should not cause your application to be denied as long as the officer believes the marriage is legitimate.

An I-751 “lifting of conditions” application is an important legal process that will result in you obtaining a permanent ten year green card and US citizenship. Therefore, it is important to have an immigration attorney handle your I-751 process, especially if you may be seeking a divorce.

Related Blog:

My I-751 Has Been Denied. What Are My Options?