What’s an I-751?
An I-751 is a petition that is filed to remove the conditions on US residency. If a couple is married for less than two years when their initial marriage-based green card case is adjudicated, the non-US citizen spouse is given conditional residency. This residency lasts two years. 90 days prior to the expiration of that conditional status, the conditional resident is required to file an I-751, Petition to remove condition on residency.
The purpose of the I-751 is for USCIS to see that the marriage is still valid, although there are exceptions that allow the non-citizen to file alone. The burden is on the applicant (for those filing alone) or applicants (if the couple is still married) to show that the marriage was entered in good faith. If the marriage has fallen apart, the non-citizen must still file an I-751 to remain in the United States. There are exceptions that permit a I-751 to be filed even though the marriage has fallen apart.
My Marriage Has Fallen Apart? What Do I Do?
First, it is important to note that the I-751 clearly allows for sole filing. There are five exceptions to the requirement that the couple still be married. The three most pertinent to spouses are the following: One of them is the death of the U.S. citizen spouse. Another is that the marriage was entered into in good faith, but has ended in annulment or divorce. The third exception, is that the non-citizen entered the marriage in good faith but was subjected to battery or “extreme cruelty.” The official name for the exceptions is “waivers.” The non-citizen spouse is asking for a “waiver” of the requirement to file with their spouse.
My spouse and are I pursuing a divorce. Do I need to wait for a final divorce decree or judgment?
According to recent practice, it is the case that USCIS wants to see a final divorce if you are filing for the “waiver” based on divorce or annulment. This actually follows the plain meaning found in the waiver request section on the I-751 itself.
However, what sometimes happens is that the 90-day window prior to the filing deadline comes, and the marriage has broken down, but it’s not possible to get a final divorce decree by the filing deadline. What does one do?
USCIS rules at this time do allow a sole applicant to send in the I-751 under the “divorce waiver” even with only a pending or in-process termination of marriage. What will likely happen is that USCIS will issue a Request for Evidence (RFE) which asks for a final divorce decree. And often, a divorce can be finalized within that time frame.
However, there are situations where even with the added time of the RFE, a divorce cannot be finalized. There are solutions available for that, such as requesting an interview with a USCIS Field Office, which may extend the time a bit, giving slightly more time to obtain a divorce decree. If you are in this set of circumstances, it’s important to work with a competent immigration 751 lawyer, so that a strategy can be put together to deal with the lack of a divorce decree.
Don’t forget – you still need to show that you entered into the marriage in good faith!
What kind of documents can show that I entered into the marriage in good faith?
The documents to show that a marriage was entered into in good faith that are sent in with the I-751 are similar to those that are used to show a good faith marriage in the initial green card application.
Examples include: joint finances (such as bank statements), joint insurance coverage, photographs that document the trajectory of the relationship, proof of a wedding ceremony (such as rental of a banquet hall, photographs, receipts for purchase of flowers, the rings, etc.), proof of joint residence (such as a lease, deed, or mail received at a joint address), and of course, proof of children being born to the marriage.
These are just examples. In addition, you should have at least two affidavits (sworn declarations) from individuals who can attest to the fact that you married your ex-spouse (or soon to be ex-spouse) in good faith.
Can the government deny my I-751?
The Service has the right to deny your I-751 if it does not feel that you have sufficiently shown that you entered the marriage in good faith, or if the documents are not sufficient to show that during the 2-year conditional residency period, you co-mingled your life with your ex-spouse (or abuser if you are filing that waiver). They may also issue something called a Request for Evidence (RFE), where they essentially ask you to provide more evidence of the relationship.
This is why it is so important to work with a licensed and experienced law firm. New rules that have recently gone into effect give the Government the right to simply deny a case that does not meet its burden, without first issuing an RFE. So it is essential that a case be prepared thoroughly from the get-go. Also, if an RFE is issued, having a lawyer on your side can help you put your best case forward in responding to what the Government is asking for.
If your I-751 is denied, you could be placed into removal proceedings, and have to defend yourself before an Immigration Judge. The 751 lawyer team at Lightman Law Firm can help you.
Give us a call. Our lawyer team speaks Spanish, Russian, and French.