Filing an I-751 Waiver Where a Marriage Ends in Divorce

In this post, attorney Jacob Sapochnick discusses filing the I-751 removal of conditions application where the foreign national’s marriage to the US Citizen has ended in divorce.

Who must file?

If you have received a two-year conditional permanent resident card, based on your marriage to a United States citizen, you are required to remove the conditions on your green card before the expiration date, by filing the Form I-751 Application for Removal of Conditions. This petition is typically filed jointly with your spouse, but you may seek a “waiver” of the joint filing requirement if you are no longer married to the US Citizen spouse through which you obtained conditional permanent residence.

Waiver of the Joint Filing Requirement

If you are no longer married to the US Citizen spouse through which you gained conditional permanent resident status, the burden of proving that you entered the marriage in good faith is much higher. These types of applications are called ‘I-751 Waivers’ because you must request a waiver of the joint-filing requirement in your application. Immigration officers scrutinize I-751 waiver applications much more than applications that are filed jointly with your spouse.

This does not mean that your application will not be approved, it simply means that you must prepare a strong application with plenty of documents proving that, even though your marriage has ended, you entered your marriage in good faith. Such documents may include evidence of continuous cohabitation with your former spouse, photographs, evidence of commingling of finances, and joint responsibility of assets and liabilities. If the immigration officer is not satisfied with the documentation provided in support of your application to establish good faith marriage, or if you are claiming that you were battered or abused during the marriage, you will most likely be scheduled for an interview.

Providing a very well thought out and strong application may prevent you from receiving an interview notice from USCIS.

On average, the typical processing time for waiver applications ranges from six months all the way up to one year, depending on the complexity of the case. It is not uncommon for I-751 waiver applications to take longer than 12 months to be adjudicated.

For a detailed discussion of what documents are necessary to establish that you entered the marriage in good faith please click here to read our I-751 guide.

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