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Waiver of Joint Filing Requirement when Divorce is Pending

A marriage that is less than two years old when the alien spouse receives a green card results in conditional permanent residence for that spouse for a period of two years. Conditional residents and permanent residents have the same rights and restrictions under the law, except that conditional residents must have the conditions on their residence removed.

This is done through an I-751 petition jointly filed by the spouses with the USCIS, along with evidence of their valid marriage, within 90 days of the second anniversary of the alien spouse’s green card.

If the marriage does not last even for a period of two years and the I-751 is not signed by both spouses, the law allows the alien spouse to file a waiver of the joint filing requirement, which is also made on the I-751. The spouse can seek a waiver if the marriage was entered into in good faith but has been terminated through a final divorce or annulment.

But what if the divorce is not yet final, the 90-day window is running out, and the petitioning spouse refuses to sign the joint petition? The USCIS has clarified how it adjudicates I-751 petitions if the marriage has not been terminated but the spouses are legally separated or have initiated divorce or annulment proceedings.

If the divorce or annulment proceeding is still pending, the alien spouse can file the I-751 and request a waiver of the joint filing requirement. The adjudicator will issue a Request for Evidence (RFE) and give the alien spouse 87 days to give proof of the termination of the marriage. Usually the divorce will take place during this almost three-month period, which will allow the alien spouse to submit a copy of the final divorce decree.

Note that the alien spouse must still establish eligibility for the waiver by submitting evidence of a good faith marriage. This includes proof of joint ownership of property, such as a deed with both spouses’ names; joint tenancy, such as a lease agreement naming the spouses as tenants; and commingling of finances, such as income tax returns, bank statements, credit card bills and utility bills with the names of both spouses.

Birth certificates of children born to the marriage are a good evidence of the bona fides of the marriage. Affidavits of third parties, family pictures, documentation of vacations, communications addressed to the spouses may also be submitted.

If the alien spouse is eligible for a waiver and the divorce is already final, the I-751 petition will be approved and the conditions on permanent residence will be removed.

If the alien spouse cannot submit the divorce decree, or otherwise fails to respond to the RFE or to establish eligibility for the waiver, the I-751 will be denied and the alien’s conditional LPR status will be terminated.

The case will then be processed for issuance of a Notice to Appear in removal proceedings. At that stage, however, the alien spouse will have another chance to establish eligibility for a waiver before the immigration judge. The alien spouse can present a divorce decree, if already available at that time, or ask for continuance from the judge until the divorce is final.

On the other hand, if the petitioning spouse consents to sign the I-751 petition but a divorce or annulment proceeding is already pending, the alien spouse will receive an RFE giving him/her 87 days to submit the divorce decree and to request that the joint petition be treated as a waiver petition. This allows the alien spouse to request a waiver without having to re-file the I-751 after the divorce.

If the alien spouse submits decree and establishes eligibility for the waiver, the USCIS will grant the waiver and remove the conditions on the permanent residence.

But if the decree is not produced, the petition will be treated just like a joint petition. The adjudicator will look for sufficient evidence that the marriage was entered in good faith and determine if an in-person interview is needed.

If the adjudicator is satisfied that the marriage was bona fide, he/she will approve the I-751 petition and remove the conditions. Otherwise, the petition would be denied, the alien spouse’s conditional LPR status terminated, and the case is processed for issuance of a notice to appear in removal proceedings.

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