Failing Marriages and Conditional Green Cards

All lawful permanent residents who obtain their residency based on marriage to a U.S. Citizen and who, at the time of application, had been married for less than 2 years are granted conditional residency. Conditional residents must file a petition to remove the conditions on their residency within 90 days of the expiration of their conditional green card. (For more background on conditional residency read our previous article.) The I-751 petition must be filed jointly with the lawful permanent resident's spouse. Some marriages, even if entered into with good intent, don't last 2 years. So what should a conditional resident do if his or her marriage has been terminated or is failing when it becomes time to file the I-751? There are several possible scenarios and outcomes and we will explore them all here.

2 Basic Possible Scenarios

• Scenario 1. The marriage has failed and the divorce is final.
• Scenario 2. The marriage is failing but the marriage has not been legally terminated (i.e. divorce is pending, parties are separated, the couple is estranged, etc.)

Solutions for LPR's in Scenario 1

An LPR whose marriage has failed and has been legally terminated before he or she files the I-751 has the advantage of certainty. The only option for a LPR in this position is to file the I-751 and request a waiver of the joint filing requirement. In order to obtain the waiver and approval of the underlying I-751, the LPR has the burden of proving to the USCIS that the marriage was entered into in good faith but the marriage was subsequently terminated.

Solutions for LPR's in Scenario 2

LPR's who are still legally married but are in failing marriages can encounter problems with the I-751. Because the waiver of the joint filing requirement is only available to LPR's whose marriages have been legally terminated, LPR's in failing marriages are not eligible for the waiver. This is true even if the couple is legally separated. If the LPR's spouse is not willing to cooperate and jointly file the I-751, the LPR should consider initiating legal proceedings to terminate the marriage if divorce proceedings are not already pending and file the I-751 and request a waiver of the joint filing requirement despite the fact that the marriage is not yet terminated.

In most cases, the USCIS will issue a request for evidence and grant the LPR 87 days or more to submit evidence of termination of the marriage. In cases where a divorce is pending this may provide enough time for the divorce to be finalized. Once the divorce is finalized, the LPR qualifies for a waiver of the joint filing requirement and can obtain approval of the I-751 upon establishment that the marriage was entered into in good faith.

If the LPR's spouse is willing to cooperate and file the I-751 jointly but the parties are legally separated or in divorce proceedings a similar result may be obtained. In cases like these, the USCIS should issue a request for evidence asking for a copy of the divorce decree and request that the LPR provide a statement that he or she would like the I-751 to be treated as a waiver petition. Upon receipt of the divorce decree and request to treat the petition as a waiver request the USCIS will adjudicate the petition in the normal fashion.

Get Professional Help with your I-751

I-751 petitions in the case of failing marriages can be very complicated. However, a failed or failing marriage does not mean the a conditional resident cannot obtain a permanent green card. If you are in a failed or failing marriage and need assistance with your I-751, please contact us today.