I-751 Waiver – Remove Conditions on Green Card without Spouse

A question we often get is “Can I lose my green card if I get divorced?” The answer is mostly not, it depends. If you obtained your conditional green card through marriage to a U.S. citizen or permanent resident, and the marriage is less than 2 years at the time of filing for your green card, you will have to file an application called Removal of Conditions (I-751) before your conditional green card expires.

Divorce After Green Card – Chicago Immigration Lawyer

The Removal of Conditions filing (I-751) is an Immigration petition typically filed jointly by an American spouse and a conditional resident spouse. The effect of an approved I-751 is to remove the conditions of a marriage based green card, thus making the applicant a permanent resident thereafter. However, when there is abuse or a marriage just will not work, how can a conditional resident spouse overcome this requirement of joint filing? Will you lose your conditional green card because you’re divorced or your American spouse is no longer in a marital relationship with you?

Under certain circumstances, you may file for a I-751 without your spouse. In that case you should file a I-751 waiver, essentially asking the immigration (USCIS) to waive the joint filing requirement because of some unique circumstances such as abuse, or extreme hardship.  This article will address what is required for the removal of conditions waiver process, as well as who qualifies for it and what you may need to prove your I-751 case.

Divorce and your Condition Green Card Status

In the United States immigration process, if a foreign national obtains residency based on marriage to a U.S. Citizen or Permanent Resident before their 2-year wedding anniversary, he or she will receive a conditional residency instead of permanent residency.  This means that the foreign national’s green card will expire within 2 years of their residency being approved and they will need to apply for another application called removal of conditions 3 months before the expiration date of the conditional green card.  

The removal of conditions petition is called the I-751 petition. Typically, this petition is required to be filed jointly with the US citizen or Permanent Resident Spouse. If the foreign national cannot file jointly with their spouse, they must file an I-751 waiver independently to remove those conditions. 

Who qualifies to remove conditions without spouse/I-751 Waiver?

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Conditional residents may request a I-751 waiver without the spouse under the following situations:

  1. The death of the U.S. citizen spouse

    If the I-751 petitioner’s spouse has died, the submission of a certified copy of the death certificate is suffice.

  2. The marriage was entered in good faith, but the couple went through annulment proceedings and/or is now divorced 

    For I-751 waiver, the conditional resident must submit evidence that the marriage was bona fide to begin with. Proof of a bona fide marriage will go under extreme scrutiny because the marriage was so short-lived. The applicant must also show that the marriage has been legally terminated by providing the divorce or annulment decree.  

  3. The marriage was entered in good faith, but the non-citizen spouse was subject to abuse or extreme cruelty during the marriage 

    It is difficult to prove abuse and extreme cruelty because often times, the perpetrator is manipulating and threatening the victim. An abusive spouse may have control over all of the couple’s documents. In that case, the conditional resident spouse’s declaration, explaining the history of the relationship, will help. However, if there are documentations as well as proof of abuse such as pictures of injuries, statements from third parties, or journal entries, they should all be submitted in this waiver petition.  
    The applicant does not need to have documentation proving that the marriage has been terminated to qualify for the removal of conditions waiver/I-751 waiver.  

  4. The noncitizen is a child whose parent entered their marriage in good faith, but the noncitizen child was subject to abuse or extreme cruelty 

    A conditional resident spouse can file a I-751 waiver if only his or her children were the victims of the physical or mental abuse. The child does not need to have U.S. citizenship or permanent resident status in order to file this waiver. In addition, the applicant does not need to have documentation proving that the marriage has been terminated to qualify for this type of waiver. In order to get an I-751 waiver approved, documentation of the abuse is extremely helpful.  

  5. Termination of conditional residency would result in extreme hardship 

    A conditional resident may also file a waiver of the joint filing requirement if they can show that extreme hardship will result if they are deported. However, the hardship can apply to the conditional resident spouse, to a dependent child, or to a new spouse according to the USCIS. It is important to note that USCIS will only consider hardship that arose during the conditional residence period. In this case, though it would be helpful to submit evidence that the marriage was bona fide, it is not required. 
    Proving hardship can be difficult. Include any and all evidence that could possibly prove that the applicant would suffer more than what would be typical for a person who is forced to leave the United States and return to their home country.  

Waiver of Removal of Conditions Requirements

The general rule of joint filing for the removal of conditions can be waived, meaning an I-751 application can be filed by you only.  To be qualified for the I-751 waiver, you should provide prove of the following:

  • you entered into the marriage in “good faith” and not for immigration benefits;
  •  the termination of your conditional residency status will result in extreme hardship;
  • either the you or your child was battered or subjected to extreme hardship by the U.S.-citizen or permanent-resident spouse.

Removal of Conditions Waiver TIMELINE

Removal of Conditions Waiver Timeline
Removal of Conditions Waiver TIMELINE

If you file for your green card right after your marriage with a U.S. citizen, you will receive a conditional green card. A conditional green card is basically a residency that allows you to live in the U.S. for two years, upon the expiration of two years, you are required to file a separate petition called the Removal of Conditions (I-751).  The effect of the removal of condition petition is to remove the conditional conditions on your permanent residency so that you will be eligible for citizenship in the near future.

Generally, a I-751 application should be filed jointly by you and your sponsoring spouse. However, if you are divorced or no longer in a marital relationship with your sponsoring spouse or in the process of a divorce proceeding, you may file the I-751 petition without your spouse. Once the I-751 waiver is approved, you will be eligible for citizenship a year after.

Contact a Chicago Immigration Lawyer to handle your I-751 Waiver

Removal of conditions Waivers are complex and detailed.  Whether you are divorced after green card or not, you have to satisfy the burdensome documentary and evidential requirements of the removal of conditions waivers petition. 

With over 30 years of collective experiences, our Chicago Immigration attorneys have successfully helped many clients for their I-751 waivers.  We provide highly quality immigration services that include the following:

  • accurately prepare all the immigration forms, and
  • strategically strengthening your application with strong evidence and legal argument, and
  • review your application in order to ensure you have the strongest case put forward;
  • prepare you for your removal of conditions interview via our mock interview with our Chicago immigration attorney, should the USCIS requests an interview;
  • provide 24/7 support from start to finish.

If you are seeking a Chicago based immigration lawyer to guide and represent you in your removal of conditions waivers, please call 773 687-0549 or contact us online to schedule a consultation. We speak Chinese, Spanish, Italian, French and Portuguese.