5 Tips for Removing Conditions After a Divorce

Last Updated: January 15, 2020.

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Removing conditions can be a relatively straightforward process, especially if you and your spouse provide enough bonafide evidence to convince the United States Citizenship and Immigration Services (USCIS) that your marriage is legitimate.

However, if you were divorced during the conditional period, the process can become more complicated.

What is the Form I-751 Petition to Remove Conditions on Residence?

When a U.S. citizen and a foreign national get married, the USCIS grants a conditional 2-year green card. The 2-year conditional period is designed to allow the USCIS to make sure the marriage is legitimate. The conditional green card process can be avoided if the couple files for the green card 2 year or more after their date of marriage.

After two years, you will need to petition to the USCIS to prove that your marriage is legitimate and entered in “good faith”. Form I-751, Petition to Remove Conditions on Residence is the form you will file to remove your conditions and apply for a 10-year green card.

You can submit the form 90 days prior to your green card expiration date. If you fail to remove conditions before the expiration date, you will lose your lawful permanent residence status, and the process for removal will commence. If your 2-year green card has expired and you haven’t filed to remove your conditions, you should call an immigration attorney immediately. Here you can find a list of high-quality attorneys in your area.

You are generally eligible to remove your conditions if:

• You are still married to the same U.S. citizen.
• You entered into your current or previous marriage “in good faith” but you or your child were battered or abused by the U.S. Citizen that you married.
• You entered into your marriage “in good faith” but the marriage ended through divorce or annulment.
• You entered into your previous marriage “in good faith” but you were widow.

1. Don't Forget the Waiver

The portion of Form I-751 that is applicable to marriage status is under Part 3: Basis for Petition and is known as “Joint Filing”. This section of the form requires that you identify whether or not your spouse will be participating with you in filing this petition for condition removal. Further down, in section 7, signatures are required from both parties.

In part 3, underneath the section on Joint Filing, there is a section to request a waiver to avoid Joint Filing. The only reason that Joint Filing may need to be waived is if the relationship in your marriage is damaged or presence of your spouse deems Joint Filling impossible.

Conditions that may require the waiver:

• Your spouse is deceased.
• The marriage was terminated.
• You were subject to cruelty in your marriage.
• Removal from the United States back to your home country would create significant hardship.

If these conditions apply to you, check the appropriate box in the section under part 3. Be aware that if you check the box indicating that you and your spouse were divorced before your two year anniversary, you will receive an RFE (request for evidence) which must include you final divorce decree.

2. If Your Divorce is Not Finalized

So what happens if you don’t have a final divorce decree? This may be the case if you and your spouse have separated, but have not started or completed the divorce process prior to the 90-day deadline. Additionally, this may be the case if you are still married but your spouse refuses to file the I-751 form with you.

There are three courses of action that you may take in this situation:

1. You may choose to remain married through the separation, and file for the waiver under battery. This option is only available to you if these conditions apply to your individual situation.
2. You may send in evidence that the divorce process has begun. This process may be a risky one if the divorce is not finalized in time to respond to the RFE (which requires a finalized divorce decree). There may be unfortunate consequences if this is the case.
3. If you had applied prior to your 2-year anniversary, failure to respond to the RFE will result in the commencement of removal proceedings.
4. If you had already begun removal proceedings due to expiration of your conditional card,failure to produce a final decree may result in the judge not giving you a second chance. You may be removed from the United States. Wait until your conditional green card has expired, and then appeal once the removal proceedings have begun.

If you are caught in any of these situations, you should contact an immigration attorney.

3. Gather The Evidence

As you may have noticed from the previous qualifications mentioned in this article, one possibly confusing phrase that is used, is “in good faith”. This phrase refers to the original intent behind your marriage. Now, you may be asking how the government could reasonably measure something as subjective as intent.

There is an order of information you may be required to produce to prove that your marriage was of “good faith”. This is especially true if your marriage has ended, because it calls the original intent of your marriage into question. To make sure that you and your spouse were not taking advantage of the system, anything that proves the genuine nature of your marriage will be accepted.

The criteria for information that can be provided all show proof that you and your partner attempted to build a life of substance together. This shows commitment and good intention. The following will contribute to your case that your marriage was “in good faith” (in order from most to least helpful):

• You and your spouse not only have children, but have children together:
  • Provide birth certificates to prove that the two of you had biological children together
  • Provide adoption records to prove that you adopted a child together if biological children were not possible or preferred
• You share resources:
  • Things you can provide to prove the existence of a shared financial or other resource system:
    • Proof of shared bank accounts or funds
    • Proof of shared maintenance on a home
    • Proof of tax returns
    • Credit card or loan statements
    • Leases, mortgages, or deeds
    • Common club membership
    • Common religious organization
    • Common associations
    • Common teams
    • Anything that has your shared names on it

If you are currently living apart, because of the importance of this type of proof in showing you have built a life together, you will provide a detailed explanation for why you are living apart.

• You have shared insurance and estate:
  • Provide proof of shared home insurance
  • Provide proof of shared auto insurance
  • Provide wills or trusts
  • Provide proof of funeral plans
    • This may include set-aside finances or planned locations for burial
• You have shared vacations:
  • Provide travel documents (plane tickets, event tickets, etc.)
  • Provide itineraries for past vacations

If you can provide proof that your spouse went to visit your family outside of the United States, that is a great indicator of a marriage “in good faith”.

• You have photographs or gifts:
  • Provide wedding or other event pictures
  • Provide receipts for gifts
  • Provide cards that accompanied any gifts
• You have a shared name:
  • Provide proof of shared surname
• You have affidavits, letters, and correspondence:
  • Provide letters
  • Provide Facebook messages
  • Etc.

Gather whatever you think you may need well in advance.

Do not procrastinate this step until the end so that you may ensure that you can provide the best information to give you the best chance at getting your waiver approved.

Extra tip:

Once again, any evidence that you think would show the original success and intention of the marriage should be included. Provide anything that you have access to because it is better to have too much evidence that you had a good marriage rather than risk not providing enough. Specifically, be sure to provide as many types of evidence as possible rather than just large amounts of one type of evidence.

Example: Providing 1,000 pictures of the two of you is not nearly as effective as providing a few event photos along with statements of financial cooperation and travel documents.

Be sure that if you provide a lot of information, you are aiming for a wide range of quality inclusions rather than just large quantity of one inclusion.

4. Paying Attention to Timeline

With something as time-sensitive as a conditional green card, deadlines can make or break you.

If 2-year green card is 90 days from expiring, you can file Form I-751. If you have submitted the I-751 on time but are expecting an RFE, be prepared to provide the necessary information in a timely manner.

5. Divorce by Extreme Hardship

As part of request for evidence, you will likely want to include a written explanation of why your relationship ended. This will allow the government to see exactly who is at fault and it may help your case significantly.

In this process you may claim no fault divorce or that the divorce was your spouse’s fault.

In no fault divorce, you may want to explain exactly what split the two of your apart. It could be a mutual disagreement on finances, the choice to have children, etc. In this case, be prepared to prove that the marriage was “in good faith”.

If the fault all belongs to your spouse, you will want to provide any evidence that was used in your divorce case to prove this. This situation could apply if you were abandoned or anything else done to split the marriage. Once again, any information you could possible provide as long as it is true and quality will only help you case.

This second option (spouse’s fault divorce) can also qualify you to petition for a waiver under extreme hardship. This is one of the options on the I-751 under the waiver section.

You may also check the box if any of these apply to you:

• You have lived in the United States for so long that you have lost all ties to your home country.
• You can’t get a divorce due to religious or cultural tradition.
• You would experience persecution or alienation in your country.
• You have a medical condition that can’t be treated properly in the conditions of your home country.
• You would have difficulty finding a job in your home country.
• Your United States relatives would experience great financial loss without your income.
• You do not speak the language of your home country.
• You are the primary caregiver of children born in the United States (citizens) and they would have to come with you to your home country.

Again, be prepared to provide appropriate and thorough evidence if you claim any of these situations.  

Recap:

• Know the I-751 process.
• Make informed decisions so you fill out the petition to fit your individual needs.
• Gather all of your evidence well in advance so you can thoroughly support your claims.
• Pay attention to deadlines so you stay on top of the approval process.
• Know your situation so you know if extreme hardship can apply to you.

For more help with filing the I-751 and other immigration questions, visit www.simplecitizen.com and chat with one of our immigration experts!