The removal of conditions process is an additional safe-guard that USCIS (U.S. Citizenship and Immigration Services) uses to make sure that a marriage is bona fide before approval for a permanent green card. If you obtained your green card through marriage and had been married for less than two years when you received your green card you will have to submit an application for removal of conditions, Form I-751. This allows you to obtain your “permanent” green card which is valid for ten years. For those whose marriage has since ended, this can be a confusing process. Some are not sure whether they can still file for removal of conditions.
This blog post explains why you should still file for removal of conditions and how to go about it even after your marriage has terminated.
Why You Still Need to File for Removal of the Conditions:
Even when a marriage has terminated you still must file for the removal of conditions before the expiration date written on the card. If you do not file, you will automatically lose your status on the expiration date and become removable from the U.S. Because these consequences are so severe, it is very important to file the petition before the expiration date.
How to Apply for Removal of Conditions:
Normally, when you are still married, you and your petitioner-spouse apply for the waiver jointly, meaning that you both sign it and appear together for an interview. However, there are several circumstances where USCIS allows you to apply for a waiver of the “joint filing requirement”. One of the circumstances is where the marriage was bona fide but then later was terminated either by divorce or annulment. In this case, you will need to submit to USCIS a certified copy of the divorce judgment and or annulment. In addition, USCIS will need to see bona fides of your marriage up to the point of separation. In other words, just because the marriage may have ended, USCIS still needs to be satisfied that the marriage was still real and entered into in good faith.
divorce or an annulment?:
Some of our clients that are separating ask us whether to seek a divorce or an annulment, and whether or not it makes a difference. Although we are not divorce attorneys, for the purposes of waiving the joint filing requirement, USCIS accepts termination of a marriage by either divorce or annulment and they do not appear to be treated differently. Throughout the instructions to the Form I-751 it indicates that a conditional resident may apply for a waiver when the marriage was “terminated due to divorce or annulment”, indicating that either is acceptable.
What if the Divorce or Annulment is Not Yet Final?:
USCIS has indicated that if the divorce or annulment is not yet final, a Request for Evidence (RFE) may be issued asking for a copy of the final divorce judgment or annulment and a written statement asking to have the petition treated as a waiver of the joint filing requirement. The RFE will generally allow a response within 87 days. If the divorce or annulment becomes final during the response time then USCIS will evaluate the petition.
As always, we recommend submitting ample evidence that your marriage was real for however long it lasted. Your marriage ending should not be an obstacle to prevent you from obtaining your permanent green card.
This blog entry is not, nor is it intended to be, legal advice. This blog is for educational purposes only. Remember that each case is unique. If you have questions about your own immigration case, please contact our Sacramento or Santa Clara office at (916) 613-3553 or firstname.lastname@example.org to schedule a consultation.
Written by: Kaushik Ranchod