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Immigration Law Blog

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I-751 waiver

Divorce and the Conditional Green Card: The I-751 Waiver

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If you have a conditional green card and divorce during those two years, you may still be eligible for the “removal of conditions” on your green card if you file an I-751 waiver.

Eligibility for an I-751 Waiver

If you have a conditional green card that is only valid for two years, you can petition to remove the conditions on your green card even though you divorced so long as you prove that you entered the marriage in good faith. This means that you married for reasons other than immigration: i.e. that you didn’t just marry your spouse so you could get a green card.

There are also several other avenues by which you can request an I-751 waiver that don’t specifically have to do with your divorce.  They are:

  1. You entered the marriage in good faith, but you have been battered or subject to extreme cruelty by your petitioning spouse (your an also file an I-751 waiver if you gained your conditional green card through your parents’ spouse and that person subjected to you battery or extreme cruelty); or
  2. The termination of your status and removal from the United States would result in extreme hardship.

In some cases it may make sense to file under multiple different eligibility categories.  However, remember that the standard for “battery or extreme cruelty” and “extreme hardship” are high, and that sometimes simply providing clear evidence you married in good faith is a much cleaner and easier process.

Timing on an I-751 Waiver

If you are still married when you file your conditional residency, you have a small window of time before the expiration of your conditional green card in which to file your I-751 waiver.  However, if you’re divorced, you can file the I-751 at any time prior to the expiration of your green card.  Therefore, if you divorce a year into your status, you can file your I-751 waiver well before your card expires, as opposed to having to wait to be inside the normal window.

A Few Tips for the I-751 Waiver

Our office spend a lot of time preparing I-751 waiver cases, and there are many things we could say about how best to prepare them.  However, there are two main pitfalls I find people fall into, so I’ll discuss them here.

1. Remember the Standard

Remember that generally, you simply must prove that you married in good faith.  This is the same thing you had to prove when you got your conditional green card, but you will just be scrutinized a little more thoroughly now that you are divorced.  Make sure to submit financial documents like joint tax returns, joint bank statements, joint Sam’s club memberships, etc. etc.  Affidavits from a few people who are close to you are helpful, but they will likely not be sufficient.  Also, it doesn’t matter if you haven’t had a joint bank statement in 6 months, or if you let your Sam’s Club membership expire.  Remember, you’re admitting that it didn’t work out, so don’t worry.  You just have to prove that you entered the marriage in good faith.  And of course, the more documents you have and for a longer period of time, the better.  But don’t trash your bank statements just because they’re old.

2. Speaking of Trashing, Don’t Do It (About Your Ex)

Divorce is hard.  And messy.  And likely very, very hurtful no matter who made the decision to divorce or how it came about.  But while it is important in your I-751 waiver to at least touch on why things didn’t work out with your spouse, it’s also really important to make sure that you focus on the standard of proof and not all of the horrible things that your spouse did.  This can be a really fine line and very tricky, so its important to consult with an immigration lawyer to help you make these types of decisions.  And remember, even if you are filing under the “battery or extreme cruelty” section, it’s important (maybe even more important than filing under other sections) to focus on the evidence that rises to the level of what you must prove.

If you have questions, feel free to contact us for a consultation.  Or check out our post about the Top 5 Questions for the I-751.