Form I-751, Petition to Remove Conditions on Residence, is normally filed jointly by a conditional resident and a spouse who is a U.S. citizen or lawful permanent resident. If the marriage has ended in divorce, USCIS has a separate route: a waiver of the joint filing requirement. USCIS lists several grounds for a waiver, and a marriage entered in good faith that later ended by annulment or divorce is one of them on its I-751 page. This article explains what USCIS publishes. It does not tell you what to file in your own case.
The default rule: a joint petition
A conditional permanent resident is someone whose Green Card was granted on a conditional basis through marriage. USCIS says to use Form I-751 "if you are a conditional permanent resident who obtained status through marriage." In the USCIS Policy Manual, a joint petition applies where the conditional resident "is still married to the same U.S. citizen or lawful permanent resident." For a joint filing, USCIS says you "must file your Form I-751 during the 90-day period immediately before your conditional residence expires."
A divorce changes that, because the person you would file with is no longer your spouse. That is where the waiver comes in.
The waiver grounds USCIS lists
USCIS's Policy Manual says a conditional resident may rely on one or more grounds to waive the joint filing requirement. The ones USCIS lists are:
- Removal from the United States would cause extreme hardship.
- The marriage was entered into in good faith and was terminated other than by the death of the petitioning spouse. The I-751 page words it as: "You entered into your marriage in good faith, but the marriage ended by annulment or divorce."
- The petitioning spouse battered or subjected the conditional resident spouse, or that spouse's child, to extreme cruelty.
- The petitioning stepparent or the conditional resident parent battered or subjected the conditional resident child to extreme cruelty.
The USCIS I-751 page lists the same kinds of grounds in its own words, including the death of the petitioning spouse. Which ground, if any, applies to a person is a legal question for a licensed immigration attorney.
What USCIS says about the divorce ground
The Policy Manual describes the divorce waiver in three parts:
- The marriage was entered into in good faith.
- The marriage has been terminated. USCIS says there is "no basis for a waiver of the joint filing requirement based on a legal or informal separation."
- The conditional resident was not at fault in failing to meet the filing requirements for Form I-751. USCIS says this "has not been interpreted to mean that the CPR is at fault for the terminated marriage," and that "it does not matter if the CPR left the marriage or initiated divorce proceedings." ("CPR" means conditional permanent resident.)
USCIS also says the conditional resident must show the marriage was not entered into to evade immigration laws. That requirement does not apply to a waiver based only on extreme hardship.
When a waiver can be filed
The Policy Manual says a waiver request may be filed "at any time before, during, or after the 90-day period." The removing-conditions page likewise says you may request a waiver "before or after the 90-day period" until a final removal order has been issued. If the person is in exclusion, deportation, or removal proceedings, the Policy Manual says the person "may only apply for a waiver up until the time the immigration court issues the final order." For a battery or extreme cruelty waiver, it says the request may be made at any time after the person is granted conditional status and before a final order of removal.
The I-751 page words the timing differently: it says a person filing individually or requesting a waiver may do so "at any time before your conditional permanent resident status expires." Because the pages use different words, ask an attorney which one applies to your dates.
What kind of evidence USCIS looks at
For the good-faith marriage question, the Policy Manual says USCIS focuses on conduct after the person immigrated. The list it gives includes:
- The degree to which the parties combined financial assets and liabilities.
- Length of time the parties lived together after the marriage and after the conditional resident obtained conditional status.
- Children born to the marriage.
USCIS also says, on its removing-conditions page, that if you are still married but in divorce or annulment proceedings and you filed a waiver request, "we will issue a request for evidence" asking for a copy of the final divorce decree or annulment, if applicable. For a battery or extreme cruelty waiver, the I-751 page says you may file your form with "any credible evidence relevant to the application."
When to talk to a licensed attorney
Choosing a waiver ground, deciding how to document it, and handling a pending divorce are all case-specific decisions. A licensed immigration attorney is the right person for them. If you are in immigration court proceedings, talk to an attorney before anything else, because the Policy Manual sets a different deadline for people in that situation.
Once a petition is filed, you can read what a pending I-751 means on our I-751 status page. For the receipt notice and the extension, see our guide to the I-751 receipt notice.
Common questions
Is a legal separation enough for the divorce waiver?
USCIS's Policy Manual says there is "no basis for a waiver of the joint filing requirement based on a legal or informal separation."
Do I have to prove who caused the divorce?
The Policy Manual says the "not at fault" requirement "has not been interpreted to mean that the CPR is at fault for the terminated marriage," and that "it does not matter if the CPR left the marriage or initiated divorce proceedings."
Can I file a waiver before the 90-day period begins?
The Policy Manual says a waiver request may be filed "at any time before, during, or after the 90-day period," and the removing-conditions page says before or after it, up until a final removal order. The I-751 page words it as any time before conditional status expires.
Will USCIS ask for my divorce decree?
USCIS says that if you are still married but in divorce or annulment proceedings and you filed a waiver request, it will issue a request for evidence asking for a copy of the final divorce decree or annulment, if applicable.
Official sources
- USCIS Policy Manual, Volume 6, Part I, Chapter 5 (waivers)
- USCIS Policy Manual, Volume 6, Part I, Chapter 3
- USCIS: I-751, Petition to Remove Conditions on Residence
- USCIS: Removing Conditions on Permanent Residence Based on Marriage
GreenLight is not affiliated with USCIS or the U.S. government. This article is for informational purposes only and does not constitute legal advice.