I-751 Petitions Filed Prior to the Termination of Marriage

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An oddity in the immigration system exists in regards removing conditional residence while being in a failing marriage.  When an immigrant receives a green card through marriage and the marriage is less than two (2) years old, the immigrant receives what is known as conditional permanent residence.  Conditional residence is identical to lawful permanent residence in terms of the rights granted to the immigrant.  However, conditional residence expires in two (2) years, and a married couple must jointly file an I-751 Petition to Remove Conditions in the 90 day period prior to expiration in order for the immigrant to maintain permanent resident status. 

When the underlying marriage has remained intact, this process is fairly simple.  Complications arise when marital trouble prevents the immigrant from jointly filing the I-751 Petition with their spouse.  Immigration regulations allow an immigrant who has received a final order of divorce to seek a waiver of the joint filing requirement.  However, immigrants who are either separated or who are in ongoing divorce proceedings are not eligible for a waiver of the joint filing requirement. 

Earlier this year, USCIS issued a memo clarifying what options are available for conditional residents are in a failing marriage but have not received a final order of divorce.  If a Petition is filed that seeks a divorce waiver, but a final decree of divorce hasn't been made yet, USCIS has instructed its officers to issue a Request for Evidence (RFE) with a response period of 87 days.  The idea behind the 87 day response period is to allow the conditional resident time to finalize a divorce if divorce proceedings have already been initiated.  If a final order of divorce has not been obtained in this period, the conditional residence of the immigrant is terminated, and the case may be set for deportation proceedings.  Even during deportation proceedings, if the immigrant is able to finalize a divorce, the I-751 Petition will be adjudicated on it's merits. 

The other option available to conditional residents in divorce proceedings is simply to wait to file the I-751 Petition until a final order of divorce has been made.  USCIS will generally excuse late filing if it can be proven that divorce proceedings were ongoing at the time that conditional residence expired. 

If you are a conditional resident and are planning on filing an I-751 Petition, please contact our office for assistance.

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This page contains a single entry by Jonathan Portner published on July 30, 2009 10:44 AM.

New Rule Affords Interim Relief for Widows of U.S. Citizens was the previous entry in this blog.

Immigration Enforcement Toughens While Progress on Reform Remains Stagnant is the next entry in this blog.

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