Removing Conditions Post-Divorce: The I-751 Waiver of the Joint Filing Requirement

Removing Conditions Post-Divorce: The I-751 Waiver of the Joint Filing Requirement

–By Brandon Gillin

Under normal circumstances, when an alien receives a green card based upon a marriage to a U.S. citizen (or sometimes a Lawful Permanent Resident) that is less than two years old, the alien holding “conditional residency” must “remove conditions” of the residency if s/he wishes to become a “lawful permanent resident” (“LPR”). This is done by a process known as “removal of conditions” and is accomplished by filing Form I-751 with the United States Citizenship and Immigration Services (“USCIS”). Filing Form I-751 is typically a joint endeavor done by both spouses (the U.S. citizen and the alien). Sometimes, however, the marriage ends in divorce prior to the time of filing for removal of conditions. After divorce, many alien spouses are left believing that they are unable to remove conditions since they no longer have their U.S. citizen spouse to file jointly with them. This is not the case. Form I-751 may be filed individually by the conditional resident. The only difference is that the alien must “waive” the joint filing requirement by filing Form I-751 along with a specific request for a “Waiver of the Joint Filing Requirement,” and submit certain evidentiary documentation along with the I-751. In fact, divorce is not the only ground upon which the Waiver may be filed; there are multiple grounds on which a conditional resident may individually remove conditions of residency. This article, however, focuses on just the ground of divorce.

 

First, if you believe you are eligible to file the I-751 Waiver, you may benefit from seeing an experienced immigration attorney. Normal petitions to remove conditions on Form I-751 do not necessarily need an attorney, but whenever there is a waiver of the joint filing requirement involved, it is advisable to use an attorney’s services.

Second, as stated above, you must also submit evidence along with the I-751 Waiver. This evidence must include proof that you entered into the marriage in good faith and that the marriage ended in divorce. Therefore, begin to gather evidence. Such evidence may include the following:

1) Write a detailed statement explaining how you and your spouse first met, your prior feelings toward him/her, the wedding, etc.

2) Gather vital documentation (marriage certificate, birth certificates of children, photos, letters written by your former spouse to you, letters addressed to both you and your spouse from friends and family, etc.)

3) Get in touch with people who have firsthand knowledge of the relationship between you and your former spouse. Ask these people if they would provide detailed, written statements regarding their firsthand knowledge of the relationship between you and your former spouse.

4) Gather proof of all of the assets you and your former spouse commingled (bank accounts, insurance policies, credit cards, mortgages, automobiles, etc.) Obtain copies of all of this paperwork.

5) Obtain copies of your joint income tax returns that you and your former spouse signed together and filed with the IRS.

6) Obtain a copy of the Decree of Dissolution. You may already have a copy of this, but if you do not, you may obtain it from the court that issued the decree.

You must translate all documents that are not in English to English. USCIS will not accept documents in a language other than English. Have a translator who is a disinterested third party do the translating and certifying. Submit to USCIS both the original non-English document and the English translation along with the certification.

Third, mail the I-751 Waiver to USCIS. But before mailing the I-751 Waiver, make a copy of the entire packet for your records. Mail the documents via “Certified Mail” so can be sure that the Waiver was received by USCIS. Do not forget to include the I-751 Filing Fee (check the USCIS web site to see current filing fees).

Finally, prepare yourself for an interview in front of a USCIS officer. It is very likely that if you are submitting the I-751 Waiver, USCIS will summon you for an interview. The USCIS officer will ask you detailed questions about your life; specifically, your previous marriage. Be truthful. Do not give the USCIS officer any reason to suspect that you are being untruthful. Don’t offer information that isn’t asked of you. Don’t guess; if you don’t know the answer, say, “I don’t know the answer.”

The foregoing is intended to be general information and is not to be taken as legal advise. For legal advise concerning your specific case, contact an experienced immigration lawyer.

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