In a world of misinformation and uncertainty regarding Immigration I wanted to write an article regarding the process of removal of conditions where the marital relationship has ended or is heading down that path. Many individuals fear that they will not be able to obtain the 10-year green card if they are no longer living with or married to the spouse, through which they obtained the conditional green card. This situation however is not the case.

Typically, when an individual obtains a green card through marriage, they receive a 2-year conditional green card, unless they have been married for more than 2 years when the residency is granted. At the end of the 2 years (can be filed up to 90 days before 2nd anniversary) the applicant is then required to submit a petition to remove conditions on residence using I-751. For those still married this petition is filed jointly which means that both spouses sign the paperwork. However, the joint filing requirement is waived if one of the following situations apply:

You entered the marriage in good faith, but your spouse subsequently died;
You entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment;
You entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse; or
Your conditional resident parent entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent’s U.S. citizen or lawful permanent resident spouse or by your conditional resident parent; or
The termination of your status and removal from the United States would result in extreme hardship.

There are clear options to file the I-751 without having your spouse sign the paperwork. However, a tricky situation arises where you are separated, but not divorced as no such waiver exists under these circumstances. To qualify for a waiver based on divorce you must provide an official divorce decree.

If you are currently going through a separation, but are not yet divorced, you have two options:

File I-751 jointly with your spouse. If your relationship is amicable and your spouse is willing to sign the paperwork this will still be processed as a joint filing. This is because you are still married in the eyes of the law, until divorced. USCIS is not permitted to deny a petition just because you and your spouse are separated and/or have initiated divorce proceedings.
File I-751 without your spouse’s signature. You will then need to work with a Divorce Attorney to ensure that the Divorce is finalized by the time USCIS is ready to adjudicate your case.

With regards to option 2, USCIS will issue a Request for Further Evidence (RFE) asking for the signature of your spouse when they are ready to adjudicate your case. At the time of writing this article, USCIS is taking 14-32.5 months to adjudicate I-751 petitions. If you have divorced by the time, you receive this RFE, you can submit the divorce decree and ask that your filing be converted to a waiver. You will need to make sure you provide evidence that the marriage was entered into good faith. In other words when you first entered into the marriage you had the intention to establish a life together. This can include photographs, text messages, e-mails, joint ownership of property, joint lease, joint bank accounts, flight itineraries, etc.

If for some reason your divorce is not finalized by the time you receive an RFE and your spouse will not sign the paperwork, then unfortunately USCIS will deny your case because it’s neither a joint filing nor a basis for a waiver. However, given the lengthy adjudication times it should be possible to finalize the divorce in plenty of time.

It is also worth mentioning here that a joint filing must be filed within 90 days of the 2nd anniversary. A late filing will require an explanation as to why it was filed late together with a request that USCIS excuse the late filing. However, a petition requesting a waiver can be filed at any time either before, during or after the 90 days.

If you have questions regarding the above, please contact us at cprescott@patellegal.com.