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NSC Advises on Effect of Separation or Divorce on I-751 Petition Process

December 27, 2004: NSC advises on how to handle I-751 removal of conditions petitions where the petitioner and beneficiary are divorced or separated.

Background

At the time you obtain conditional resident status through admission to the United States with an immigrant visa or through adjustment of status, the USCIS will notify you of the conditional basis of your status, the requirements for removal of the conditions and what will happen if you fail to file a petition to remove the conditions.

The USCIS does not send a second reminder to conditional residents to petition for removal of conditions. During the 90 days before the second anniversary of the date you obtained conditional resident status you and your spouse (if still married) must file to remove the condition. You must file a Petition to Remove the Conditions on Residence. All petitions should be sent to the Service Center that serves the area where you live. Failure to file will result in loss of your resident status. Late filings are permitted with sufficient explanation of the reason(s) for being late in filing.

What are the Application Procedures?

If you are filing a joint application with your spouse to remove the conditions on your permanent residence, you must submit the following:

• USCIS Petition to Remove the Conditions on Residence signed by both you and your spouse
• Copy of USCIS Permanent Resident Card
• Evidence that you did not get married to evade the immigration laws of the United States. Examples of such evidence includes, but is not limited to:
  • Leases showing that you and your spouse live in the same place
  • Documents that prove that you and your spouse own property together
  • Birth certificates of your children

If you are a widow or a widower, you must submit the following:

• USCIS Petition to Remove the Conditions on Residence
• Copy of USCIS Permanent Resident Card
• Evidence that you did not get married to evade the immigration laws of the United States. Examples of such evidence includes, but is not limited to:
  • Leases showing that you and your spouse lived in the same place
  • Documents that prove that you and your spouse owned property together
  • Birth certificates of your children
  • Copy of your spouse's death certificate.

If your marriage was terminated other than by the death of your spouse, you must submit the following:

• USCIS Petition to Remove the Conditions on Residence
• Copy of USCIS Permanent Resident Card
• Evidence that you entered in the marriage in good faith, and not to evade the immigration laws of the United States. Examples of such evidence includes, but is not limited to:
  • Leases showing that you and your spouse lived in the same place
  • Documents that prove that you and your spouse owned property together
  • Birth certificates of your children
  • Copy of your divorce or annulment decree
  • Evidence that you were not at fault in failing to file the petition on time, if applicable.

If you or your child were battered or subjected to extreme mental cruelty by your spouse, you must submit the following:

• USCIS Petition to Remove the Conditions on Residence
• Copy of USCIS Permanent Resident Card
• Evidence that you entered the marriage in good faith and not to evade the immigration laws of the United States. Examples of such evidence includes, but is not limited to:
  • Leases showing that you and your spouse lived in the same place
  • Documents that prove that you and your spouse owned property together
  • Birth certificates of your children; or
  • Expert testimony proving that you or your child were battered or subjected to extreme mental cruelty. Examples of such testimony includes, but is not limited to:
    • Copies of police and medical records detailing evidence of physical abuse
    • Evaluations by clinical social workers and psychologists showing evidence of mental cruelty
    • Copy of your divorce decree if your marriage was terminated because of physical abuse or mental cruelty.
  • Evidence that you were not at fault in failing to file the petition on time, if applicable.
  • Evidence that the termination of your conditional resident status and your removal from the country will cause you extreme hardship, includes but is not limited to the following:
    • USCIS Petition to Remove the Conditions on Residence
    • Copy of USCIS Permanent Resident Card
    • Evidence that your deportation would cause greater hardship than the hardships created when other aliens are removed from the United States.

However you should note that in evaluating the claim that your removal from the United States will cause you extreme hardship, the Service will only consider factors which arose after the date you obtained your conditional permanent residence.

If you are a child filing separately from your parents to remove the conditions on your permanent residence, you must submit the following:

• USCIS Petition to Remove the Conditions on Residence
• Copy of USCIS Permanent Resident Card
• A written explanation of why you are filing separately from your parents, and any supporting documentation.

Do I Need to Be Physically Present in the United States at the Time of Filing?

The Petition to Remove the Conditions on Residence can be filed regardless of whether you are physically present in the United States at the time that you file. However you must return to the United States with your spouse and your children in order to comply with the interview requirement.

Is a Personal Interview of the Joint Petitioners Required?

You and your spouse must appear for a personal interview at the district office that serves that area where you live. However, the director of the regional service center where you file your petition has the discretion to waive the interview requirement. The director will review the petition to determine whether an interview is required. If the director is satisfied based on the written petition that your marriage was not entered into in order to obtain immigration benefits, he or she may waive the interview requirement and approve the petition. If the director is not satisfied of the validity of your marriage based on the petition, he or she will forward the petition to the district office to conduct an interview.

How Can I Get a Waiver of the Requirement to File a Joint Petition?

If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement by filing a Petition to Remove the Conditions on Residence. You may request that the Service consider more than one basis for a waiver at the same time. If the waiver is approved the conditions on your conditional residence will be removed.

You may request a waiver of the joint petitioning requirements if:

• Your deportation or removal would result in extreme hardship
• You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition.
• You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you were battered by, or subjected to extreme cruelty committed by your U.S. citizen of lawful permanent resident spouse, and you were not at fault in failing to file a joint petition.