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US Immigration

Posted 8/20/2009

Removing Green Card Conditions Pending Divorce

A green card obtained on the basis of marriage to a U.S. citizen or permanent resident is conditional if the marriage occurred less than two years at the time it was granted.

To remove the condition, Form I-751 (Petition to Remove Conditions in Residence) must be jointly filed by the couple within 90 days before the second anniversary of the date that the conditional resident status was obtained.

If the petition is not filed, the resident status is automatically terminated.

In filing the petition, the husband and wife must prove that the marriage was legal where it took place; the marriage was not entered into for the purpose of procuring permanent resident status; no fee other than attorney’s fee was paid for filing of the underlying relative petition; and that the marriage has not been terminated.
If the petitioning spouse does not sign the petition, the conditional resident may file for a waiver of the joint filing requirement under any of the following grounds:
1) the removal from the U.S. of the conditional resident would result in extreme hardship;
2) the marriage was in good faith but that it has been terminated;
3) the conditional resident entered the marriage in good faith but the petitioning spouse committed battery against the conditional resident.
What happens if the joint petition is not filed and the couple’s marriage has not been terminated but a divorce or annulment action is pending?

A waiver may still be filed on the basis of termination of marriage. The waiver will not be granted based on the pending divorce or annulment but according to a recent guidance memo from the United States Citizenship and Immigration Services (USCIS) Associate Director, the I-751 will not be adjudicated outright but a Request for Evidence (RFE) with a response time of 87 days will be issued to the conditional resident.

This will give him/her ample time to submit the final decree of divorce or annulment in support of the waiver request.

When proof of the termination of the marriage is submitted, the waiver may be granted. If no evidence of termination is submitted within that period, the USCIS will deny the I-751 petition on the ground that the divorce or annulment has not been finalized and it will issue a formal termination of the conditional resident status. The case will then be referred to the Deportation Unit for issuance of a Notice to Appear (NTA) before an Immigration Judge.

At the deportation hearing before the Immigration Judge, the conditional resident may again establish his/her eligibility for waiver. But if he/she still cannot submit a decree of divorce or annulment, the Judge will deny the waiver. The conditional resident may then base his/her waiver not on the termination of marriage but on hardship to him/her or battery or physical abuse committed by the petitioning spouse.

Hardship as a ground for waiver involves an examination of the conditional resident’s age, family ties in the U.S. and abroad , length of residence in the U.S., health conditions, economic and political condition of his/her country, occupation and work skills, immigration history and position in the community.

has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor and professor, he is also the author of a book on immigrant experiences. He has spoken in international and national conventions and has been interviewed on radio and television, including the ABC Nightly News. He has participated in meetings with White House staff and the Immigration Commissioner to discuss immigration reforms. For his community service and advocacy, he has received numerous awards in the U.S. and abroad. For more information, you may log on to his website at or call (212) 695-5281
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