The I-751 Waivers: My Marriage Didn't Work Out

If you marry a U.S. citizen and you are not one yourself you will be granted a “conditional” green card with a 2 year validity period. To eventually qualify for a permanent green card you must file a Form I-751 which is a petition which removes any conditions of residency.

To be certain that you have a genuine ongoing relationship, both you and your spouse must sign the form within 90 days before the arrival date of your two-year anniversary. This normally goes relatively smoothly. However, there are cases where the marriage has come to an end before the two years is up. This situation makes it impossible for the spouse who is not a U.S. citizen to file Form 1-751 with the ex spouse’s signature. All is not lost as you can continue to submit the Form I-751 along with a request asking for a “waiver” of the requirement to file the form jointly.

There are a number of reasons for the granting of a waiver which are:

• divorce following a genuine marriage
  
  
• battery or abuse by the U.S. citizen spouse in a genuine marriage
  
  
• excessive hardship to the spouse if she or he is forced to return to his or her home country.

If you are sent a final order for divorce from your spouse before the ending of the 2 year conditional period then asking for a divorce waiver is one option open to you. The stumbling block will be successfully convincing the U.S. Citizenship and Immigration Services (USCIS) that you have valid reasons for allowing you to be granted an exception to the joint filing. The first reason will be providing evidence of your genuine relationship.

You will need to provide a written explanation telling the USCIS why your marriage has ended. If it is found that you are mainly to blame for the marriage breakdown the USCIS may disallow the continuation of your I-751 petition. Assuming this is not the case you may submit Form I-751 at any time following the divorce or annulment. There is a way of bypassing the divorce waiver and that is if you or any conditional resident child has been battered by your U.S. spouse or subjected to noticeable cruelty by your U.S. citizen spouse or if being asked to leave the U.S. would mean you would experience extreme hardship. This is basically simply completing Form I-751 “With a Hardship Waiver” or filling it out with an Abuse and Battery Waiver”.

When you file your application there is a fee to be included as well as:

• a photocopy of the back and front sides of your permanent resident card
  
  
• a photocopy of the divorce or annulment document or proof that the divorce proceedings are progressing;
  
  
• proof that you had a marriage that the marriage was genuine such as copies of joint bank statements, home ownership or apartment rental documents and any other documents that show you were participating in joint activities in your marriage;
  
  
• proof indicating the reasons for the marriage breakdown if it was not your fault;
  
  
• evidence regarding the circumstances surrounding the end of your marriage (if you were not at fault).
  
  

Following the filing of your petition, you will be sent a receipt on Form I-797 by the USCIS that will act as your green card once your conditional card has expired and this will permit you to carry on living and working in the U.S. and travel overseas too.

You may be asked to attend an interview and you will be expected to answer questions related to your marriage and subsequent divorce.

Read more about getting divorced while on a 2 year green card.

What evidence should you include in an I-751?

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