For those who obtained their temporary green card through marriage, they must petition for removal of conditions on permanent residence 90 days prior to the expiration of their temporary residence or green card. For those who are still married to their United States citizen spouse, they have to file Petition to Remove Conditions on Residence on Form I-751. Those whose marriage did not survive the two year period, they have to file the same petition but request waiver of the requirement for joint petition to remove conditions on residence. On page three, part three of Form I-751, you have to select “ Waiver or Individual Filing Request”. If you select waiver or individual filing request, you have to choose from one of five options:
GROUNDS FOR WAIVER OF JOINT FILING
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My spouse is deceased.
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My marriage was entered in good faith, but the marriage was terminated through divorce or annulment.
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I entered the marriage in good faith, and, during the marriage, I was battered, or was the subject of extreme cruelty, by my U.S. citizen or lawful permanent resident spouse.
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My parent entered the marriage in good faith, and, during the marriage, I was battered, or was subjected to extreme cruelty, by my parent’s U.S. citizen or lawful permanent resident spouse or by my conditional resident parent.
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The termination of my status and removal from the United States would result in an extreme hardship.
This blog will discuss the second option on this list; that is, “My marriage was entered in good faith, but the marriage was terminated through divorce or annulment”. In most cases, the marriage is still limping along but it is clear that either the U.S. citizen spouse is no longer cooperating or the U.S. citizen spouse will not appear for the interview or if he/she appeared, the interview will not go well.
Pending Joint Petition
If you have already filed a petition for removal of conditions but have not yet been invited for interview and your United States citizen spouse is not willing to attend the interview with you or you have lost contact with him/her, your best option is to contact a lawyer to discuss your options. It may very well be that you have to seek a divorce, file for removal of conditions based on waiver. In this situation where you have a pending petition based on a joint petition, you may have to file for divorce with the hope that you can conclude the divorce process before you are invited for interview. If you have not concluded the divorce process before you are invited for interview, you should ask for a postponement of the interview date. It is best to have your lawyer deal with the request for postponement. Sometimes when you request a postponement, the immigration might just postpone the interview for a short period of time.
In most states, to file for a divorce, you have to show that you and your spouse have been separated for at least 1 year before the date of your complaint/petition for divorce. This presents a challenge in that you do not want to give the impression that you and your spouse separated shortly after you received your green card. However, you need a lawyer that is experienced in both immigration and divorce matters.
You may have to file a new petition based on a waiver and attach a copy of the divorce complaint you filed. At the same time, you have to withdraw the pending application based on joint petition. You do not want to have two petitions pending at the same time. Once your divorce is concluded, it is best to submit a copy of that divorce decree with USCIS and also make sure that you have a copy with you when you attend the interview.
No Pending Joint Petition:
If you conclude that your marriage will not last long enough for you to get your permanent residence status or that your United States citizen spouse will not cooperate in the removal of conditions process, you have to decide how to proceed. You have to keep in mind that your options are limited to the five listed above. If you are not filing Joint Petition, you have to consider waiver of the requirement for Joint Petition. The other options are much more difficult to prove except in a situation where your US citizen spouse is deceased.
If you conclude that your marriage is no longer viable, you have to decide which of you should file for divorce. If your US citizen spouse can file for divorce, it will be better for you since part of the requirement is that the marriage ended without fault by you. If your US citizen spouse is not willing or unable to file for divorce, you have to do it. If your US citizen spouse simply abandoned you, it is best to use this ground in your divorce complaint. You may also us “voluntary separation” as a basis for your divorce. In some states, you can divorce your spouse if he or she is convicted of a criminal offense. Even though you may use this ground for your divorce, it is not recommended for immigration purposes. It is not clear whether this ground of divorce will serve your immigration purpose. However, you have to review the divorce grounds in your state and elect the one that most closely describes your situation.
Generally, you cannot file the petition for removal of conditions if you are not officially divorced. The basic requirement for this option is that the marriage ended and you are not at fault. You cannot file this petition with this option if you are simply separated. On the other hand, if you fail to file something, your green card and your temporary resident status will terminate. In some cases, you have already filed a joint petition but before the interview, your U.S. citizen spouse decides not to cooperate anymore.
If you have to file for divorce before the expiration of your temporary green card, make sure you have a stamped copy of your divorce complaint/petition. If you have to file for your removal of conditions before the conclusion of your divorce proceedings, you should attach a copy of the divorce complaint to your petition. Once the divorce is concluded, make sure to send a copy of the divorce decree to USCIS.
Evidence of Life Together As Husband and Wife
If you have these documents, be sure to attach them to your petition when you file it. You definitely need these documents when you attend the interview based on a waiver. You should be prepared to submit/present these documents showing that the marriage was entered into in good faith and you and your husband/wife lived together and acted and presented yourselves as husband and wife during the marriage and to the outside world:
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Lease or deed for your residence
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Copies of rent or mortgage payments
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Joint Bank statements
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Joint credit card statements
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Copies of your joint tax returns
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Life insurance policies
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Health Insurance policies/cards
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Joint title to automobile(s)
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Automobile insurance policies in both names
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Joint utility bills
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Affidavits from friends of both parties – husband and wife – it does not help much to present affidavits from your friends only
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Affidavits from your family and your husband/wife family
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As many photographs as possible showing both parties together, including friends and family and on different occasions and locations, such as vacations, thanksgiving, Christmas, wedding, graduation, Fourth of July, etc.
There is no such thing as too much documents.