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Divorced Conditional Residents

admin-ajax (1)I recently met with a client who had received a notice from USCIS stating it was time for him to file an I-751 form in order to have the conditions removed from his green card.   Individuals who enter the US based upon marriage to a US citizen or permanent resident usually enter as “conditional residents.” This means that their status in the US is conditional upon their marriage and is valid for two years. After the two-year period, USCIS basically takes another hard look at the couple’s marriage to see if it was a sham or fraudulent marriage (a.k.a. green card marriage) or to see if it was bona fide and the couple entered into their marriage in good faith.

The I-751 form, Petition to Remove Conditions on Residence, is typically signed and filed by the married couple; it is a joint endeavor. For those foreign national spouses who remain part of a couple, the process can be somewhat complex but it is still straight forward. However, for those whose marriages didn’t pan out, it can be a little trickier. As a result, the two-year expiration date deadline can be quite a stressful time if a foreign national spouse ends up a foreign national divorcée or divorcé. This was pretty much the circumstance of the client I mentioned above; his marriage had ended in divorce and he was worried he would now be deported.

When I first meet with conditional residents prior to preparing their I-751, one of the first questions I ask is if they are still with their US citizen spouse, and if not, if they are separated or divorced. As we all know, the divorce rate in the US is relatively high – depending on whose statistics and what demographics you are looking at, it can be up to 50%. While I don’t know the statistics for divorce rates between US citizens and foreign nationals, I’m sure it is also relatively high; why should those marriages be any different? But contrary to popular myth, conditional residents will not automatically be deported or have to fear living in the US undocumented if their marriages don’t work out.  Fortunately for those who entered into their marriage with good faith but whose marriages ended up with a divorce, there is a legal avenue for them to still become legal permanent residents.


Uncovering sham marriages is a top priority of USCIS.

The I-751 provides a hardship waiver that allows divorced conditional residents to get the conditions removed from their green cards. By checking the box that states “I or my parent entered the marriage in good faith, but the marriage was terminated through divorce or annulment,” the foreign national spouse is able to file form I-751 without their spouse’s help.   I have represented several divorced clients who successfully apply for a waiver and are now legal permanent residents.  But checking the box is the easy part, the real work is providing solid evidence that the terminated marriage was indeed entered into in good faith and it was not a green card marriage.

I often remind my clients that uncovering sham marriages is a top priority for USCIS and they will take any opportunity if they think any fraud was involved, including the I-751 process or even when a legal permanent resident applies for citizenship. Therefore it is crucial for conditional residents to collect and provide the evidence needed to support their claim that they attested to when checking the waiver request that states “I entered the marriage in good faith.”

The burden of proof required by the I-751 is quite steep and a critical part of that burden is providing bona fide evidence that the marriage was real. My advice for all conditional residents, regardless if they are filing jointly with their spouses, or applying on their own and requesting a waiver, is to seek legal advice and representation. This process can be tricky and a legal advocate can greatly assist them in presenting a solid case, writing an affidavit for those needing a waiver, and preparing them for their green card interview.

Sue Chaffee

Accredited Representative